In determining visitation and custody rights of a parent, courts are guided by the standard of what is in the best interest of the child. Wilke v. Culp, 196 N.J. Super. 487, 497 (App. Div. 1984). Although it is routine in the law to ensure that both parents have meaningful interaction with their children following the termination of the parents’ relationship, visitation may be restricted where it would “cause emotional or physical harm to the child, or where the parent is shown to be unfit.” Id. at 496 (citing In re N., 96 N.J. Super. 415, 423-24 (App. Div. 1967)).

When a party seeks modification of a parenting time agreement or of a judgment determining custody or visitation of minor children, that party bears the burden of “showing changed circumstances and that the agreement is now not in the best interests of the child.” Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div. 2003), See also, Mastropole v. Mastropole, 181 N.J. Super. 130, 136 (App. Div. 1981).

In order to determine whether the circumstances have so changed since the original judgment as to warrant a modification, a court must have some knowledge or information as to the circumstances which existed on the date of the original judgment. This is for the twofold purpose of (1) acquainting the court with the facts which existed at the time that the original judgment was entered, so that he may ascertain what motivated the original judgment and determine whether there has been any change in circumstances, and (2) aiding the court in evaluating the bona fides of the person who seeks a modification upon the grounds of change in his status of fitness.
[Sheehan v. Sheehan, 51 N.J. Super. 276, 287-88 (App. Div.), cert. denied, 28 N.J. 147 (1958).]

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When a party seeks modification of a parenting time agreement or of a judgment determining custody or visitation of minor children, that party bears the burden of showing changed circumstances and that the agreement is now not in the best interests of the child originally appeared on NJ Family Issues on November 13, 2009.

In decided custody disputes, “the primary and overarching consideration is the best interest of the child.” Kinsella v. Kinsella, 150 N.J. 276, 317 (1997); see also Sacharow v. Sacharow, 177 N.J. 62, 80 (2003). The Legislature has elaborated upon this best-interest standard by prescribing in N.J.S.A. 9:2-4(c) thirteen non-exclusive factors to be considered by the court in making a custody determination.

In this case, the judge reasonably discounted the stated preferences of the younger son because of his age; as to the older son [who was then age ten], the judge fairly considered – but only as one of thirteen statutory factors – the older son’s preference to live with his mother in California. See, e.g., Wilke v. Culp, 196 N.J. Super. 487, 498 (App. Div. 1984) (underscoring the value of the stated custodial preferences of children who are mature and intelligent enough to express themselves), certif. denied, 99 N.J. 243 (1985); Lavene v. Lavene, 148 N.J. Super. 267, 272 (App. Div.), certif. denied, 75 N.J. 28 (1977).

Also, a judge may appropriately considered the presumptive value in keeping siblings together in the same primary residence, where feasible. See S.M. v. A.W., 281 N.J. Super. 63, 71 (App. Div.), certif. denied, 142 N.J. 571 (1995); see also N.J.S.A. 9:2-4 (recognizing sibling relationships as a custody factor).

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The stated custodial preferences of children who are mature and intelligent enough to express themselves are of value originally appeared on NJ Family Issues on October 29, 2009.

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

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Every Other Weekend originally appeared on NJ Family Issues on September 26, 2009.

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In this case, the New Jersey court had subject matter jurisdiction over the custody dispute at that time of the divorce pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA), N.J.S.A. 2A:34-28 to -52. That statute was later repealed and replaced by the Uniform Child Custody Jurisdiction and Enforcement Act, (UCCJEA), N.J.S.A. 2A:34-53 to -95, on December 13, 2004. The UCCJEA was promulgated to refine and improve upon the UCCJA and it retains the central purposes of the prior act. Griffith v. Tressel, 394 N.J. Super. 128, 138 (App. Div. 2007).

Because the UCCJA was in effect at the time of the initial custody determination, it controls whether this State had jurisdiction. N.J.S.A. 2A:34-94.

The UCCJA stated that the Superior Court of New Jersey had jurisdiction to make an initial custody determination if New Jersey was the child’s “home state” at the time of the commencement of the proceeding. N.J.S.A. 2A:24-31. The statute defined “home state” as “the state in which the child immediately preceding the time involved lived with his parents . . . for a least 6 consecutive months . . . .” N.J.S.A. 2A:34-30.

A motion requesting physical custody of the children after the UCCJA was repealed is governed by the UCCJEA, N.J.S.A. 2A:34-94.

If New Jersey was the children’s home state at the time of the initial custody determination, the court must consider whether, during the time between the initial order and the filing of the motion for modification, circumstances have changed so as to divest this State of that jurisdiction. Griffith v. Tressel, 394 N.J. Super. 128, 140 (App. Div. 2007).

The UCCJEA states that once the “home state” has made a child custody determination consistent with N.J.S.A. 2A:34-65, which determines initial child custody jurisdiction based on similar criteria found in the UCCJA, ^[1] it retains “exclusive, continuing jurisdiction” over the determination until:

(1) a court of this State determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child’s care, protection, training, and personal relationships; or
(2) a court of this State or a court of another state determines that neither the child, nor a parent, nor any person acting as a parent presently resides in this State.

[N.J.S.A. 2A:34-66a.]

In Sensient Colors v. Allstate Ins. Co., 193 N.J. 373, 386 (2008), our Supreme Court stated that “New Jersey has long adhered to the ‘general rule that the court which first acquires jurisdiction has precedence in the absence of special equities.’” (quoting Yancoskie v. Del. River Port Auth., 78 N.J. 321, 324 (1978)).

NOTE: My legal services include divorce, child support, child custody and visitation, alimony, equitable distribution, and marital agreements.

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1. The UCCJEA requires that the state acquiring jurisdiction must have been the child’s “home state” within six months of commencement of the action. N.J.S.A. 2A:34-65. “Home state” is defined 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.” N.J.S.A. 2A:34-54.

If New Jersey was the children’s home state at the time of the initial custody determination, the court must consider whether, during the time between the initial order and the filing of the motion for modification, circumstances have changed so as to divest this State of that jurisdiction originally appeared on NJ Family Issues on August 11, 2009.

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There is a distinct difference between the duties of a guardian ad litem and an attorney appointed to represent the interests of the children. Rules 5:8A and 5:8B are designed to eliminate confusion between the role of a court-appointed attorney for the children and a court-appointed guardian ad litem. Pressler, Current N.J. Court Rules, comment 1 on R. 5:8A, 5:8B and 5:8C (2009).

A court-appointed counsel acts as an independent legal advocate for the best interests of the child and takes an active part in the hearing, while a guardian ad litem acts as an independent factfinder, investigator and evaluator as to the best interests of the children. In re M.R., 135 N.J. 155, 173 (1994).

Specialized expertise in reunification of fractured families is not required of a guardian ad litem. See, e.g., P.T. v. M.S., 325 N.J. Super. 193, 209 (App. Div. 1999) (appointing an attorney the new guardian ad litem).

However, the same person cannot serve as the guardian ad litem for the children and a court-appointed mediator. Isacson v. Isacson, 348 N.J. Super. 560, 565 (App. Div.), certif. denied, 174 N.J. 364 (2002). See also Fawzy v. Fawzy, ___ N.J. ___, ___ (2009) (slip op. at 38) (guardian ad litem cannot serve as arbitrator of child custody and parenting time issues).

See my related Blog Post: A judge may appoint a guardian ad litem in a dispute between parties regarding custody and parenting time

See related Blog Post, published in the NJ Family Legal Blog

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A court-appointed counsel acts as an independent legal advocate for the best interests of the child and takes an active part in the hearing, while a guardian ad litem acts as an independent factfinder, investigator and evaluator as to the best interests of the children originally appeared on NJ Family Issues on August 10, 2009.

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When a parent seeks to modify custody, the parent must demonstrate changed circumstances that affect the welfare of the children. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). “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.” Ibid. In Lepis v. Lepis, 83 N.J. 139, 159 (1980), the Court held that this standard avoids the requirement of a hearing in every instance. Thus, the threshold question is whether a prima facie showing has been made that a plenary hearing was necessary. Hand, supra, 391 N.J. Super. at 106.

A plenary hearing is appropriate when there are conflicting recommendations on how to achieve reunification. See Ali v. Ali, 279 N.J. Super. 154, 172 (Ch. Div. 1994) (“In child custody cases, a ‘plenary hearing is virtually a necessity . . . unless there are overwhelming admitted facts (e.g., child abuse). Such a hearing must be held . . . where serious and long standing effects on the life and well-being of the child may result.’” (quoting MC v. MC, 215 N.J. Super. 132, 140 (Ch. Div. 1986))).

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; 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.

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When a parent seeks to modify custody, the parent must demonstrate changed circumstances that affect the welfare of the children originally appeared on NJ Family Issues on August 10, 2009.

Jurisdiction over child custody determinations is governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), N.J.S.A. 2A:34-53 to -95, which was adopted in New Jersey to be effective on December 13, 2004. See L. 2004, c. 147. Prior to that effective date, jurisdiction in such matters was governed by the Uniform Child Custody Jurisdiction Act (UCCJA), N.J.S.A. 2A:34-28 to -52. Jurisdiction to modify a foreign custody order was more broadly permitted by the UCCJA than now permitted by the UCCJEA.

N.J.S.A. 2A:34-67, which provides limited authority for a court of this State to modify a foreign custody order, states that:

a court of this State may not modify a child custody determination made by a court of another state unless a court of this State has jurisdiction to make an initial determination under paragraph (1) or (2) of subsection a. of [N.J.S.A. 2A:34-65] and:
a. the court of the other state determines it no longer has exclusive, continuing jurisdiction under [N.J.S.A. 2A:34-66] or that a court of this State would be a more convenient forum under [N.J.S.A. 2A:34-71]; or
b. a court of this State or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.

Any relinquishment of jurisdiction by the state with exclusive jurisdiction must occur before any other state assumes jurisdiction. Were it otherwise, there would be a danger, upon a party’s request for after-the-fact approval, that the other state could deem it convenient or expedient to approve of its relinquishment of jurisdiction.

The requirements of the UCCJEA must be precisely met before the exercise of jurisdiction by our courts over foreign custody orders to avoid adding confusion to what, in many circumstances, often is a difficult or convoluted set of circumstances. A later decision relinquishing jurisdiction cannot support another state’s unauthorized assumption of jurisdiction.

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Any relinquishment of jurisdiction by the state with exclusive jurisdiction over child custody must occur before any other state assumes jurisdiction originally appeared on NJ Family Issues on September 23, 2008.