What Must My Lawyer Show A Judge So I May Transfer Custody Of My Children?

What Must My Lawyer Show A Judge So I May Transfer Custody Of My Children?

A New Jersey child custody lawyer must prove that a change of circumstances has occurred that not only would allow a judge to revisit the most recent child custody and parenting time court order but may then allow for a plenary hearing to determine if custody should in fact be transferred. Furthermore, the attorneys at our East Brunswick, New Jersey law firm provide consultation to many parents who would like to transfer custody of their child. As always, our lawyers will provide you with an honest legal opinion before proceeding with a motion for transfer of custody of you child. The following recent New Jersey Appellate Court decision explains how judges handle child custody matters.

In Podems v. Podems, the parties were married in 1999 in New Jersey. In 2001, the parties moved to Alaska and had one child born of the marriage there in 2009. In 2011, the husband filed for divorce in Alaska. On July 9, 2013, the Alaska Superior Court issued the divorce after a trial. In the order, the mother was granted legal and physical custody of the parties’ child, and the father was allowed visitation. The father was also ordered to pay child support. The father then appealed to the Alaska Supreme Court, which agreed with the Alaska Superior Court and affirmed its decision. The Alaska Supreme Court remanded, however, on the issue of the division of the mother’s retirement accounts.

In 2013, the parties moved back to New Jersey. The Superior Court of New Jersey Family Part granted the mother’s motion to register and recognize the Alaska Superior Court’s final judgment of divorce as well as the custody ordered, both granted on July 9, 2013. The father agreed to consent, and both of the mother’s motions were granted. The court also granted the mother’s motion to make New Jersey the home state of the parties’ child, which the father consented to. Additionally, the court, with the father’s consent, granted the mother’s motion to establish Union County as the place to litigate issues such as custody, parenting time, and child support. Lastly, the court granted the mother’s motion to modify child support. Both parties continued to file motions with the court in New Jersey.

The father filed a motion on December 8, 2015 seeking shared legal custody, to alter the holiday schedule to include days off from school and Jewish holidays, and physical custody of the parties’ child for the summer. The father also requested that the time and location be changed for the pick-up/drop-off of the parties’ child. The father wished to change the location from the police station to a public location, and he wanted to be able to pick the parties’ child up directly from school. Lastly, he requested to be allowed Skype communications with the parties’ child. On January 29, 2016, the trial court granted the father’s request for Skype communication with the child, but denied all other requests. On February 2, 2016, the trial court issued two other orders granting the mother wage execution, changed holiday and vacation parenting time, and indicated that pick-up/drop-offs would take place inside the police station. Additionally, the court granted the mother attorney’s fees. The second order on February 2, 2016 denied a post-judgment motion the father filed in its entirety. On January 29, 2016, the father filed a notice of appeal seeking to appeal previous motions, but the court only allowed the father to appeal the February 1 and 2 orders as the father did not timely appeal the previous orders.

On appeal, the father argued that the courts in New Jersey did not retain jurisdiction to modify the child support orders granted in Alaska. The father also challenged the court’s decision denying his motions to alter parenting time, visitation, and custody. Lastly, the father argued that the court was wrong to grant the mother attorney’s fees.

The New Jersey Appellate Division first stated that there was no modification of child support in the February 1 or 2 orders; therefore, the Appellate Division does not have jurisdiction. However, the Appellate Division noted that the father agreed to allow New Jersey to attain jurisdiction. The Appellate Division also stated that there is a two-step process to modifying child support. First, the party seeking to modify must show a change in circumstances. Second, if a change in circumstances has been found, the party must then show that modification is in the best interests of the child. In this case, the Appellate Division stated that the trial court was not wrong to grant the father summers with the child, even though the child might have to attend summer school, because a decision was to be made closer to the summer. Therefore, the Appellate Division indicated that the father should file a new motion seeking to modify parenting time and visitation. As far as holiday scheduling, the Appellate Division found that the parties’ holiday schedule contained a note indicating that the schedule could be changed due to the cultural and religious beliefs of the parties. The father stated that he is Jewish and wished to have parenting time with the child on Jewish holidays, although the mother indicated that the father never celebrated Jewish holidays. The Appellate Division stated that there are strong public policy reasons to favor stability in holiday and parenting time schedules, but since the schedule incorporated a possibility to modify for religious reasons, the court found that the father must demonstrate a change in circumstances to justify modifying the schedule. The Appellate Division held that the trial court was correct to deny the father’s motion because the father did not demonstrate a change in circumstances warranting modification.

The Appellate Division also addressed the father’s argument regarding the pick-up/drop-off location of the parties’ child. The Appellate Division noted that the November 21, 2014 order stated that the pick-up/drop-off location would be the police department unless the parties mutually agree otherwise. Additionally, the November 20, 2015 also indicated that the pick-up/drop-off location would be the police department. The court noted that the father wished to move the location to a bagel store, but the mother indicated that she did not feel comfortable with that, which is why the location was set to the police department in the first place. The Appellate Division found that the father did not show a change in circumstances warranting a change in location. The court stated that the father said a change in location would save both parties driving time and that changing the time from 6:00 p.m. to 3:45 p.m. would help to avoid rush hour traffic, but the Appellate Division indicated that the trial court found that the traffic was the same when the order was first entered in 2014. The Appellate Division held that the trial court properly rejected the father’s request to change pick-up/drop-off time and location.

The Appellate Division also found that the trial court was correct to deny the father’s claim that he was being denied the opportunity to advocate for the parties’ child because the father did not show a change in circumstances to justify termination of the mother’s sole legal custody. The Appellate Division also held that the father did not show a change in circumstances warranting the need for a parenting time coordinator, and that this issue was not raised in the February 1 and 2 orders so the Appellate Division does not retain jurisdiction over that issue. Lastly, the father argued that granting attorney’s fees to the mother was improper. The Appellate Division noted that the Thanksgiving holiday schedule gave the father visitation with the child on Thanksgiving; however, a November 2015 order rescinded the father’s visitation with the child on Thanksgiving. The Appellate Division stated that it is unclear from the record why the trial court rescinded the father’s Thanksgiving parenting time or why the trial court awarded the mother attorney’s fees. The Appellate Division stated that an award of attorney’s fees should be supported by specific factors set forth by statute and that the trial court did not utilize the factors to make a proper finding in this case. The Appellate Division held that the portion of the February 2, 2016 order awarding attorney’s fees should be vacated and the issue should be remanded to the trial to make specific findings on the issue.

Ultimately, the Appellate Division affirmed the trial court’s decision regarding parenting time, custody, and child support, but vacated the trial court’s decision awarding attorney’s fees and remanded the issue back to the trial court.

Contact us online or give us a call at (732) 783-5588 to seek our assistance with your child custody case.

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