In Schulze v. Morris, 361 N.J. Super. 419, 426 (App. Div. 2003), the court concluded that a residential custodial parent’s relocation within the State does not constitute a removal action pursuant to N.J.S.A. 9:2-2, requiring advance approval for the proposed relocation. Although approval is not needed under the statute to move to another part of the State, the court explained:

When a non-residential custodial parent opposes the intrastate relocation of his or her child by the primary residential custodial parent on the basis that the move will be deleterious to the relationship between the child and the non-residential custodial parent, or will be otherwise inimical to the child’s best interests, those factors outlined by Justice Long in Baures, supra, 167 N.J. at 116-17, 770 A.2d 214, as well as other relevant matters, should be considered in determining whether modification of the custodial and parentingtime arrangement is warranted. Of course, as noted by the Court, “not all factors [would] be relevant and of equal weight in every case.” Id. at 117, 770 A.2d 214.

[Schulze, supra, 361 N.J. Super. at 426-27.]

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

A residential custodial parent’s relocation within the State originally appeared on NJ Family Issues on January 8, 2012.

When deciding matters involving child custody, “the court’s primary consideration is the best interests of the children.” Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). This requires focusing on “the safety, happiness, physical, mental and moral welfare of the children.” Ibid. (internal quotation marks omitted). “The matter of parental visitation is not to be considered lightly,” Wagner v. Wagner, 165 N.J. Super. 553, 557 (App. Div. 1979), but “custody is always temporary and can be reassessed based on a change in circumstances.” Feldman v. Feldman, 378 N.J. Super. 83, 96 (App. Div. 2005). “A party seeking modification of a judgment, incorporating a [MSA] regarding custody or visitation, must meet the burden of showing changed circumstances and that the agreement is now not in the best interests of a child.” Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div.), certif. denied, 178 N.J. 34 (2003).

“A plenary hearing is required when the submissions show there is a genuine and substantial factual dispute regarding the welfare of the children, and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute.” Hand, supra, 391 N.J. Super. at 105; see also R. 5:8-6 (requiring the court to “set a hearing date” if it “finds that the custody of children is a genuine and substantial issue”). Even where a party waives a plenary hearing, “the matter of visitation is so important, especially during the formative years of a child, that if a plenary hearing will better enable a court to fashion a plan of visitation more commensurate with a child’s welfare, nonetheless it should require it.” Wagner, supra, 165 N.J. Super. at 555.

When an issue of child custody or parenting time is presented and “[t]he trial court’s order was based on its evaluation of conflicting affidavits and adopt[ed] the assertions of one party over the other without the benefit of a plenary hearing,” Mackowski v. Mackowski, 317 N.J. Super. 8, 11 (App. Div. 1998), we have reversed and remanded for such a hearing, id. at 14; see also Wilke v. Culp, 196 N.J. Super. 487, 501 (App. Div. 1984) (finding that “[i]t is basic that a case should not be decided merely on the basis of conflicting affidavits”), certif. denied, 99 N.J. 243 (1985). Additionally, “disputes implicating the welfare of a child and involving conflicting contentions and opinions of lay and expert affiants must be submitted to a plenary hearing.” Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982).

The court has recognized

that the relocation of a child by the residential custodial parent from one location in New Jersey to another may have a significant impact upon the relationship between the child and the non-residential custodial parent that may constitute a substantial change of circumstances warranting modification of the custodial and parenting-time arrangement.

[Schulze v. Morris, 361 N.J. Super. 419, 426 (App. Div. 2003).]

Typically, a judge’s determination would be entitled to deference. Abouzahr, supra, 361 N.J. Super. at 157.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

The relocation of a child by the residential custodial parent from one location in New Jersey to another may have a significant impact upon the relationship between the child and the non-residential custodial parent that may constitute a substantial change of circumstances warranting modification of the custodial and parenting-time arrangement originally appeared on NJ Family Issues on November 2, 2011.

In certain family actions affecting a child, “the court has the power, if necessary, to appoint counsel” or a GAL for the child. Luedtke v. Shobert, 342 N.J. Super. 202, 214 (App. Div. 2001). The decision to appoint a GAL or law guardian under the Rule is left to the “broad discretion” of the Family Part judge. Gyimoty v. Gyimoty, 319 N.J. Super. 544, 550 n. 1 (Ch. Div. 1998). Such appointment, “which entails considerable expense, should be utilized only where the interests of the child are truly adverse to those of the parent(s). One example of such adverse interest would be the situation where neither parent is a fit custodian.” Mayer v. Mayer, 150 N.J. Super. 556, 563 (Ch. Div. 1977) (discussing appointment of law guardian prior to adoption of Rule 5:8A). In custody and relocation cases, we have suggested that where the party seeking relief, which will impact upon the child, is not represented and the opposing party is, appointing a law guardian may be appropriate to ensure the child’s interests are “adequately protected.” Luedtke, supra, 342 N.J. Super. at 214.

The GAL is permitted to hire an attorney (a law guardian) for the children if the GAL deemed it necessary under Rule 5:8B(a)(7).

Rule 5:8B, Appointment of Guardian Ad Litem, provides in relevant part:

In all cases in which custody or parenting time/visitation is an issue, a guardian ad litem may be appointed by court order to represent the best interests of the child or children if the circumstances warrant such an appointment. The services rendered by a guardian ad litem shall be to the court on behalf of the child. . . . The guardian ad litem shall file a written report with the court setting forth findings and recommendations and the basis thereof, and shall be available to testify and shall be subject to cross-examination thereon. In addition to the preparation of a written report and the obligation to testify and be cross-examined thereon, the duties of a guardian may include, but need not be limited to, the following:
1. Interviewing the children and parties.
2. Interviewing other persons possessing relevant information.
3. Obtaining relevant documentary evidence.
4. Conferring with counsel for the parties.
5. Conferring with the court, on notice to counsel.
6. Obtaining the assistance of independent experts, on leave of court.
7. Obtaining the assistance of a lawyer for the child (Rule 5:8A) on leave of court.
8. Such other matters as the guardian ad litem may request, on leave of court.

A “guardian ad litem acts on behalf of the court for the benefit of the child and serves as an independent factfinder, investigator, and evaluator of what furthers the best interests of the child.” Isaacson v. Isaacson, 348 N.J. Super. 560, 574 (App. Div.), certif. denied, 174 N.J. 364 (2002). It is well understood that “[a] court-appointed guardian ad litem’s services are to the court,” not the parties. In re M.R., 135 N.J. 155, 173 (1994) (citing official comment to Rules 5:8A and B).

The GAL’s duty is to issue a report and be available to testify, at the discretion of the court.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

In certain family actions affecting a child, the court has the power, if necessary, to appoint counsel or a GAL for the child originally appeared on NJ Family Issues on October 26, 2011.

The decision to interview a child in a Family Part matter rests in the sound discretion of the judge. See Pressler & Verniero, Current N.J. Court Rules, comment 1.4.3 on R. 5:8-6 (2011) (stating that in custody cases, Rule 5:8-6 “now provides that the judge’s interview with the child is discretionary rather than mandatory irrespective of the age of the child”). In the absence of an abuse of discretion, a reviewing court will not disturb the discretionary rulings of a Family Part judge. Donnelly v. Donnelly, 405 N.J. Super. 117, 128 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006)).

Although the interview process may cause difficulties for some children, where the child is a well-adjusted honors student, who has never been in trouble, and there is no reason to believe that she could not cogently express her views, the court should have interviewed the child and considered her wishes before modifying the parenting schedule. See Mackowski v. Mackowski, 317 N.J. Super. 8, 14 (App. Div. 1998) (stating that the “value of a properly conducted interview” of a sixteen-year-old child “outweighs the possibility of harm” that could result to the child from the interview); cf. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 113 (2008) (noting that “the family court would benefit from hearing the wishes of a child over the age of ten, who has reached a level of maturity that allows the child to form and express an intelligent opinion” in a termination of parental rights case).

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

Where a child is a well-adjusted, and there is no reason to believe that she could not cogently express her views, the court should interview a child and considered her wishes before modifying the parenting schedule originally appeared on NJ Family Issues on April 30, 2011.

In this case, Plaintiff claims that defendant previously threatened to leave the United States, go to Pakistan and leave plaintiff with no assets except those maintained in the United States. The court granted plaintiff’s request and ordered defendant to surrender his passport pursuant to Rule 4:51-1. See Permutter v. DeRose, 58 N.J. 5, 16 (1971); Tedards v. Auty, 232 N.J. Super. 541, 549 (App. Div. 1989).

In Matsumoto v. Matsumoto, the Court had the occasion to determine “whether the fugitive disentitlement doctrine should be applied to bar an appeal in a civil case . . . .” 171 N.J. 110, 110 (2002). The Court decided that

the fugitive disentitlement doctrine is an arrow in the judicial quiver that can be let loose in a criminal or civil case so long as the party’s fugitive status is sufficiently connected to the litigation in which the doctrine is sought to be invoked and so long as nothing less than dismissal will suffice.
. . . .
The inquiry is not whether the order flouted is criminal or civil, or whether the case in which the doctrine is sought to be invoked is criminal or civil. In our view, it is the flight or refusal to return in the face of judicial action that is the critical predicate to fugitive disentitlement.
. . . .
[T]he party against whom the doctrine is to be invoked must be a fugitive in a civil or criminal proceeding; his or her fugitive status must have a significant connection to the issue with respect to which the doctrine is sought to be invoked; invocation of the doctrine must be necessary to enforce the judgment of the court or to avoid prejudice to the other party caused by the adversary’s fugitive status; and invocation of the doctrine cannot be an excessive response.

[Id. at 128-29.]

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

The fugitive disentitlement doctrine originally appeared on NJ Family Issues on April 19, 2011.

“The [UCCJEA] should be interpreted so as to avoid jurisdictional competition and conflict and require cooperation with courts of other states as necessary to ensure that custody determinations are made in the state that can best decide the case.” Griffith v. Tressel, 394 N.J. Super. 128, 138 (App. Div. 2007). A primary objective of the UCCJEA is to prioritize home state jurisdiction for a state assuming jurisdiction of a child custody dispute. See Dalessio v. Gallagher, 414 N.J. Super. 18, 22 (App. Div. 2010). In relevant part, N.J.S.A. 2A:34-54 defines “home state” as,

the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.

The UCCJEA section that permits a state to assume initial child custody jurisdiction over an interstate custody dispute provides in pertinent part:

a. [A] court of this State has jurisdiction to make an initial child custody determination only if:
(1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;
(2) a court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum … and:
(a) the child and the child’s parents, or the child and at least one parent or a person acting as a parent have a significant connection with this State other than mere physical presence; and
(b) substantial evidence is available in this State concerning the child’s care, protection, training and personal relationships;
….
b. Subsection a. of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this State.

[N.J.S.A. 2A:34-65.]

[U]nless the home state declines jurisdiction, a New Jersey court cannot assume “significant connection” jurisdiction over an initial child custody determination under N.J.S.A. 2A:34-65(a)(2) if another state has jurisdiction under N.J.S.A. 2A:34-65(a)(1) either as (1) the child’s home state or (2) the child’s home state within six months prior to the commencement of the proceeding and the child is absent from the home state but a parent continues to live in that state.

[Dalessio, supra, 414 N.J. Super. at 23.]

The New Jersey UCCJEA statutes define “initial determination” as “the first child custody determination concerning a particular child”; “child custody determination” as “a judgment, decree, or other order of a court providing for the legal custody, physical custody or visitation with respect to a child,” but “not … a provision relating to child support …”; and “commencement” as “the filing of the first pleading in a proceeding.” N.J.S.A. 2A:34-54.

Applications and provisions concerning child support are explicitly excluded from the UCCJEA’s definition of “child custody determination,” N.J.S.A. 2A:34-54.

A state with “exclusive, continuing jurisdiction” over a custody dispute may relinquish or decline that jurisdiction if the child, or the child and one parent, no longer have a significant connection with the State and substantial evidence concerning the child’s care, protection, training, and personal relationships is no longer available there. N.J.S.A. 2A:34-66a(1).

However, only the State initially possessing jurisdiction may make that determination:

[T]he UCCJEA and NJUCCJEA reserve to the state that has acquired “exclusive, continuing jurisdiction” the authority to decide whether it has expired due to lack of the requisite “significant connection” and “substantial evidence,” UCCJEA, supra, §202; N.J.S.A. 2A:34-66a(1)[.]

[Griffith, supra, 394 N.J. Super. at 145.]

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

Adwokat / Prawnik Pawel Kostro mowi po polsku.

Applications and provisions concerning child support are explicitly excluded from a child custody determination originally appeared on NJ Family Issues on April 17, 2011.

Temporary emergency jurisdiction is provided by N.J.S.A. 2A:34-68, which states:

a. A court of this State has temporary emergency jurisdiction if the child is present in this State and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.

b. If there is no previous child custody determination that is entitled to be enforced under this act, and if no child custody proceeding has been commenced in a court of a state having jurisdiction under sections 13 through 15 of this act [2A:34-65 to 2A:34-67], a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under sections 13 through 15 of this act. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under sections 13 through 15 of this act, a child custody determination made under this section becomes a final determination if:
(1) it so provides; and
(2) this State becomes the home state of the child.

c. If there is a previous child custody determination that is entitled to be enforced under this act, or a child custody proceeding has been commenced in a court of a state having jurisdiction under sections 13 through 15 of this act, any order issued by a court of this State under this section must specify in the order a period of time which the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under sections 13 through 15 of this act. The order issued in this State remains in effect until an order is obtained from the other state within the period specified or the period expires.

d. A court of this State which has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made, by a court of a state having jurisdiction under sections 13 through 15 of this act, shall immediately communicate with the other court. A court of this State which is exercising jurisdiction pursuant to sections 13 through 15 of this act, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.

Emergency jurisdiction is, by statute and definition, temporary in nature.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Emergency jurisdiction originally appeared on NJ Family Issues on April 17, 2011.

The term “removal” in N.J.S.A. 9:2-2 does not prohibit temporary departures from the jurisdiction for legitimate purposes, particularly under court order. See Comas v. Comas, 257 N.J. Super. 585, 590 (Ch. Div. 1992) (child temporarily leaving New Jersey for visitation purposes with another parent does not violate the anti-removal statute).

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

A child temporarily leaving New Jersey for visitation purposes with another parent does not violate the anti-removal statute originally appeared on NJ Family Issues on April 15, 2011.

Pursuant to N.J.S.A. 9:2-2, when the Superior Court has jurisdiction over the custody of a child of divorced parents, and such child is a native of New Jersey, or has resided five years within its limits, the child shall not be removed out of its jurisdiction against the child’s own consent, if of suitable age to signify same and/or without court order.

In Kavrikis v. Kavrikis, 196 N.J. Super, 385, 391 (Ch. Div. 1984), the court found that the Legislature intended “a suitable age” to be fourteen years, as a chronological, prima facie starting point. The court further found that even if a child over fourteen consents to relocation, issues before the court may include an analysis of whether such consent was informed. Id. at 392.

In the subsequent landmark case of Baures v. Lewis, 167 N.J. 91 (2001), the New Jersey Supreme Court set forth criteria for consideration of a removal application. One of the express factors set forth was the preference of a child of suitable age.

Thereafter, in O’Connor v. O’Connor, 249 N.J. Super. 381 (App. Div. 2002), the Appellate Division held that a removal application between two shared residential custodians may be analyzed as an application for a change of custody. In such circumstances, the custody criteria set forth in N.J.S.A. 9:2-4 is applicable. One of the express statutory elements in a ustody analysis under N.J.S.A. 9:2-4 is the preference of the child when of a sufficient age and capacity to reason so as to form an intelligent decision.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

When the Superior Court has jurisdiction over the custody of a child of divorced parents, and such child is a native of New Jersey, or has resided five years within its limits, the child shall not be removed out of its jurisdiction against the child’s own consent, if of suitable age to signify same and/or without court order originally appeared on NJ Family Issues on April 15, 2011.

See my prior Blog Post: David Goldman’s efforts to be reunited with his son Sean.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

The latest in the GOLDMAN saga originally appeared on NJ Family Issues on February 22, 2011.