Absent brand new facts that would cause a significant change of circumstances, a New Jersey Family Court shall not have the lawyers retry a child custody case that was heard in another state as this is merely an attempt to try to get a more favorable decision by “relitigating” the case here in New Jersey. Following is this attorney’s take on a recent New Jersey Appellate case dealing with this issue.
In Y.D. v. T.H., the parties were married in June 2010. The parties had one child, Allison, born in 2010. While married, the parties alternated residences between each other’s homes in Virginia and New Jersey. The parties’ relationship ended shortly after Allison was born. The parties were unable to decide on custody and the father filed for custody of Allison in Virginia in October 2011. The court in Virginia held a plenary hearing to resolve the issue, which occurs when material facts of a case are in dispute and the parties’ testimony is needed to resolve the issue. After the plenary hearing, the court granted the parties joint legal and residential custody with a visitation schedule giving each party custody of Allison for two weeks at a time.
In March 2013, the mother prevented the father from seeing Allison, allegedly on the advice of the mother’s attorney. The father then began custody proceedings with the court in Virginia. On April 4, 2013, the court held a hearing but then deferred the issue for six months. At the end of 2013, the parties were divorced. In February 2014, the court in Virginia held a plenary hearing to decide the father’s motion to modify custody. At the hearing, Shannon Mitchell, a social worker with the Department of Social Services, testified. In 2012, Ms. Mitchell wrote to the court about several complaints against the mother. The mother has four other children from other relationships, and Ms. Mitchell testified that the Department of Social Services found two incidents of maltreatment against the mother in Maryland in 1992 and 1998.
The mother also testified at the hearing and stated again that her attorney, Tanisha Robertson, counseled her to prevent Allison from seeing her father. The mother also stated that she filed an ethics complaint against Ms. Robertson. Furthermore, the mother testified that she had the maltreatment findings removed from her record since they were a mistake. The mother’s attorney, Ms. Robertson, also testified. Ms. Robertson testified that she did not advise the mother to prevent Allison from seeing her father. She also testified that the mother threatened to kidnap Allison, but Ms. Robertson did not report the threat to the police. The father testified at the hearing that he was behind on his mortgage payments and taxes, but that his accountant was working on a plan to handle the issues. When asked about his home, the father stated that he could move in with his mother if he lost his home since his mother lives next door. The father’s mother also testified that she would be willing to care for Allison if needed and that she has lived in her home for over fifty years.
The judge entered an order on March 25, 2014 granting the parties joint legal custody. The judge also granted the father primary physical custody, meaning Allison would live with him. The judge found that the mother was not credible and believed that the mother would alienate Allison from her father. The judge did not find the mother’s evidence regarding the maltreatment cases to be believable, but did not reach any concrete conclusions on the issue. The judge also found that Ms. Robertson’s testimony lacked credibility. The judge stated that he would not be surprised if Ms. Robertson did, in fact, advise the mother to prevent Allison from seeing her father. Although the judge was concerned about the father’s finances, his concerns were eased by the father’s parents’ financial stability.
The mother filed a complaint with the New Jersey Superior Court Family Part in Essex County to modify parenting time and custody in December 2015. The mother claimed that the father was restricting contact between Allison and the mother. She also claimed that she was gainfully employed while the father was financially unstable, and that she had new evidence regarding the maltreatment complaints and Ms. Robertson’s suspension. The court held oral arguments and denied the mother’s motion on January 29, 2016 without conducting a plenary hearing. The court found that the mother’s evidence regarding Ms. Robertson’s suspension and the maltreatment complaints were not convincing. The court also found that the father had new liens, but the new liens did not establish a change in circumstances. Lastly, the court found that the mother did not show that the father was alienating Allison from her mother. Therefore, the court held that there was no need to modify the order from March 2014. The mother then appealed the decision.
On appeal, the New Jersey Appellate Division stated that the lower court’s decisions are binding unless they are not supported by credible and sufficient evidence. The Appellate Division stated that the biggest consideration in custody cases is the best interest of the child. To determine the best interests of the child, the court looks to the happiness, safety, and welfare of the child, among other things. In order to modify custody, the party wishing to modify must show that a change in circumstances affects the well being of the child. The Appellate Division also stated that a plenary hearing is required when there is a substantial factual dispute regarding the well being of the child, and a plenary hearing is necessary to settle the issue. However, the Appellate Division noted that the threshold to determine if a plenary hearing is necessary is whether the moving party demonstrated that the hearing is necessary.
The mother argued on appeal that the lower court was wrong to deny a plenary hearing because previous judges did not hear testimony regarding the father’s ability to move into his parents’ home with Allison. The Appellate Division found that the lower court settled this issue by determining that the father’s parents are very stable after hearing testimony from the father and the father’s mother. Furthermore, the Appellate Division stated that if the mother wanted to challenge the March 2014 order, she needed to do so in Virginia. Also, the court stated that the mother needed to demonstrate a change in circumstances that affected Allison’s well being in order to modify custody. The Appellate Division found that the record clearly indicates the mother did not make such a showing. Lastly, the Appellate Division found that the lower court did not abuse its discretion by denying the request for a plenary hearing. The court reasoned that the mother attempted to relitigate issues in New Jersey that had already been settled in Virginia. Since the court in Virginia already resolved the issue of the father’s financial stability and the mother’s evidence was the same that was used in the Virginia proceedings, the Appellate Division found that the lower court was right to deny the request for a plenary hearing.
The Appellate Division ultimately concluded that the lower court adequately considered all of the mother’s claims and was right to deny the request for a plenary hearing. The Appellate Division affirmed the decision of the lower court and stated that the mother is not prohibited from filing a motion in the future to modify custody based on a change in circumstances.