As a child custody and divorce lawyer for over twenty years, I am well versed as to the problems people face when creating a parenting time schedule. Co-parenting is definitely not an easy task. That is why parenting schedules were created in the first place. Yet, what happens in New Jersey if a parent decides to go against the established parenting schedule? That was the issue in the case of Luyster v. Colucci. Let’s explore.
In Luyster, the parties were married in 1997 and divorced in 2003. Two daughters were born of the marriage, one in 2000 and one in 2002. In the final judgment for divorce, the parties agreed to share joint legal custody while the mother would be the primary residential custodial parent. Furthermore, the parties set a parenting schedule that stated that the father would have the children for two weeks every summer.
Although custody and parenting time was determined upon the divorce, the parties constantly argued about the two issues following the final judgment. In July 2011, the trial court granted the mother’s request that each party provide notice to the other about vacation time before April 1st of each year. The father agreed to the request and notified the mother that he intended his 2013 vacation weeks to begin July 22nd and August 19th for one week each. Yet, another dispute arose because the father alleged that he was entitled to two additional days with the children since they had missed two days with him for school activities.
At the end of the first vacation week, the father refused to bring the children back to their mother’s house. Therefore, the mother filed a motion requesting the trial court to find her ex-husband in violation of her litigant’s rights for interfering with the parenting time schedule. Once the motion was filed, many attempts were made to have the children returned to their mother; however, all were unsuccessful. The father stated that the original vacation dates were tentative and that he and his ex-wife were actively discussing the parenting time schedule. Although the children were finally returned home in August of 2011, the mother still wanted her motion to be heard because the father’s interference with the parenting schedule cost her unnecessary stress and legal fees.
The trial court denied the mother’s motion. It held that the summer was over and the kids had been returned, so the motion was pointless to hear. The mother appealed. On appeal she argued that the trial court erred by failing to make a determination concerning whether her ex-husband’s conduct violated the parenting time schedule. The Appellate Division agreed with her and reversed the finding of the lower court.
The New Jersey Appellate Division stated that the trial court should have heard the motion and rendered a determination as to the father’s interference with the mother’s court ordered parenting time. While the court noted that courts would not usually decide an issue when the controversy no longer exists, it stated that the controversy was not moot in this instance. It stated, “Where the visitation schedule, including summer vacation, was ongoing, remedies for violations of court orders would have an effect on the controversy presented.”
The Appellate Division held that even though the summer was over, the trial court should have considered the mother’s motion and granted any relief deemed necessary. The trial court left the parties in a state of uncertainty by not rendering a determination. The case was reversed and sent back to the trial court for a hearing on the mother’s motion. At that point, the court may consider numerous remedies, including but not limited to:
· “Make-up” time with the children;
· Economic sanctions;
· Payment of the other parent’s attorneys fees;
· Restrictions of their parenting time;
· For perpetual offenders, a warrant being issued if it happens again.
Once parties determine a parenting schedule, absent an exigent circumstance, a party should not change it or interfere with it absent the consent of the other party. For more questions on creating a parenting schedule, please contact my office today. Thank you.