As child custody lawyers here in New Jersey, my law firm has handled many cases that involve people who move from state to state with their children. It can become confusing as to where to address future issues between the parties when you get divorced in one state, now live in another, and your former spouse lives in yet another state. I see this issue arise the most in the context of custody and support matters related to the minor children of a former marriage. Most people are not sure where to go or where to file something if they have to deal with these types of issues and have moved to another state. This can create a sense of uneasiness and doubt has to how to proceed with your case. This article will help guide you in the right direction.
Custody
May I Move With My Child From New Jersey To Another State?
This is a red-hot issue for New Jersey lawyers, judges and child custody experts alike. This is because New Jersey law has recently changed the legal standard regarding a parent’s ability to move from New Jersey to another state. Previously, a judge of a New Jersey Family Court would consider the parent was moving away “in good faith” and is it in the best interest of the child. However due to the following new case that they attorneys at our law firm have studied with a close eye, the new stand is only whether or not the move would be in the best interests of the child. [Read more…] about May I Move With My Child From New Jersey To Another State?
What Is A Parent of Primary Residence and Parent Of Alternative Residence?
In Lembeck v. Bauer, the New Jersey Appellate Division reviewed an appeal of a custody order from the Superior Court of New Jersey, Family Part of Burlington County. This order created, pursuant to their respective lawyers arguments, that a parenting schedule making the mother, Kami Bauer, the Parent of Alternate Residence, and made the father, John Lembeck, the Parent of Primary Residence. The parent of primary residence is the parent whose house the child spends most of his or her time, and generally where the child spends more than 50% of the overnights. If both parents share overnights equally, then the parent of primary residence is the parent who the child lives with while going to school. The parent of alternative residence, is the parent that the child lives with when not living in the primary house. The official definitions for both these terms come directly from the New Jersey Child Support Guidelines. The parent of primary residence is always the parent that receives child support, with the parent of alternative residence responsible for maintaining those payments on time. The parent of primary residence has a duty to keep the parent of alternative residence informed with what matters that could affect the child’s general welfare.
Kami and John started dating in 2007. They had a daughter together, named K.L., who was born in 2009. The couple lived together at John’s parent’s house both before and after K.I. was born. However, they ended their relationship in 2012, and Kami consequently moved out of John’s parent’s house. K.I. continued to live in John’s family home. Kami would visit during the day exercise her agreed-to parenting time at John’s family home. She moved in with an old boyfriend in May 2012. After this event, she tried to modify the unofficial parenting time arrangement between her and John. She wanted the court to give the majority of overnight parenting time to her. John objected to the motion, and in response filed an order to show cause, as well as a complaint for parenting time and custody on May 29, 2012. Kami filed a counterclaim for custody.
The parents tried mediation, but it proved unsuccessful. Then the issue went to trial. This trial would encompass ten days starting in September 2013 and ending in May 29, 2012. Eight witnesses were present and contributed testimony. The trial judge entered an opinion on August 8, 2014, and set forth the court’s conclusions of law and findings of fact within it.
According to the Family Part court of Burlington County, shared joint legal custody between the parents was in the best interest of the child. John was designated as the parent of primary residence and a parenting schedule was established. The parenting schedule allowed Kami to have parenting time with her child every alternate weekend. This would start on Thursday, after school, and continue till the following Monday morning. Kami would be responsible for picking-up up and dropping-off K.I. In regards to summer vacation time, Kami would get three back to back weeks and one extra week. She would have to let John know of the summer parenting time schedule ahead of time before the 15th of March of every year. John was required not to make any summer vacation with K.I. that would be in conflict with Kima’s schedule. This order was in accordance with the Standard Holiday Schedule used in Burlington County.
Kima appealed the order and argued that the trial court should have awarded her parent of primary residence, instead of John, and that the parenting time schedule was unequal and unfair. Moreover, she contended that the trial judge should have applied the legal doctrine of “tender years.”
The New Jersey Appellate Division’s power to review a custody order is limited. If the factual findings are reasonably supported by credible evidence, then an appellate panel must approve the custody order. Factual finds will not be reversed by an appellate judge unless they are so clearly unsupported by the evidence that they “offend the interest of justice.” Only New Jersey Family part courts have the authority and jurisdiction to order child custody decisions. The opinions of Family Part judges are given such great deference of their special expertise in family matters.
According to New Jersey Statute 9:2-4(f), courts have an obligation to specifically state for the factual record, the facts they use to justify any child custody order not agreed to by both parents. The New Jersey Appellate Division found that the trial judge conducted a sufficiently detailed and complete analysis of the factual record, and in fact made thorough findings. The record demonstrated that John and Kima were consistently unable to agree, communicate, and cooperate when it came to decisions about their daughter. Still, the trial judge recognized that either parent would, in general, give K.L. a good, stable, and safe home. Neither parent was found to be unfit, and both school districts would provide a comparable education. However, the facts indicated that Kima created “strained visitations”, but John had not once got in the way of Kima’s parenting time. Furthermore, even though Kima’s house might have given the child a more luxurious lifestyle, her father’s was a far more stable home because, she had lived there since she was born, her father had a stable job, and there was a family support structure, living with her grandparents, that she was used to.
According to the Family Part judge, the child was entitled to the benefit that comes from her parents sharing joint legal and physical custody. Both of them were good parents so joint custody was the most appropriate option. If the judge denied one parent of right to have a meaningful relationship, and equally participate in the child’s major life decision, it would be like taking away their parental responsibilities. K.L. deserved to have to functioning and capable parents available to her. There is a two part test for determining whether joint custody is appropriate. First, both parents must be physically and psychologically fit to handle the role of a parent. Second, both parents must be willing to accept custody. In this case both parents were in fact fit and willing to be a custodial parent.
The New Jersey Appellate Division found the trial courts custody order to be appropriate because, Kima was not being denied her right to a meaningful parental relationship. In fact, the Family Part’s child custody order was facilitating that purpose. The appellate panel also dismissed Kima’s “tender years” doctrine which stated that she should automatically become the parent of primary residence because she is the mother. The tender years doctrine was a legal principle in family law popular only in the late nineteenth century. In common law, it presumes that during a child’s “tender” years, generally under the age of four, the mother should have custody of the child. Today this doctrine is not really in practice. In the second half of the twentieth century, courts and legislatures began to reverse decisions and repeal laws that recognized the tender years presumption in favor of gender-neutral laws. In most states the best interests of the child are now the primary factors in child custody cases, and the primary caretaker is presumed to be the best parent to handle primary custody of a small child. Some state courts have gone so far as to hold that the tender years doctrine violates the Equal Protection Clause of the state constitution. The New Jersey Appellate Division stated that today there is not presumption that eight the mother or the father deserves custody at a fixed age. Therefore, the Family Part’s custody order was affirmed.
Please feel free to connect with my law firm if you face a child custody or parenting time issue.
Why Do Parents Have Alternating Weekends With Their Children?
First of all here in New Jersey, the child custody lawyers at our law firm understand that every child deserves to have weekend (i.e., “fun”) time with each parent, respectively. Furthermore, it is important for both parents, absent extreme circumstances, to have weekend time with their child. All told, if one parent does not have any weekend time with school aged children then they become the “bad cop” during the school week while the other parent gets to be the “good cop” on fun weekends. This lawyer’s following analysis of a recent New Jersey appeal demonstrates how these attorneys made their respective arguments as to the issue. [Read more…] about Why Do Parents Have Alternating Weekends With Their Children?
Is It Possible To Obtain Sole Custody After Joint Legal Custody Has Already Been Court Ordered?
As I discussed in my piece “In a New Jersey Divorce, What Does Joint Legal Custody Exactly Mean?” less than 5% of New Jersey Child Custody cases result in sole custody. Rather, the court typically will grant joint legal custody to the parties when children are involved. Simply put, joint legal custody means that both parents are “equal” as to major decisions regarding the children. Yet, what happens if one parent decides that he or she no longer wants to share legal custody? Will the court grant a motion to modify joint legal custody to sole custody? Typically, the answer to that is “no”, unless the child’s best interests would be better served by one parent having sole legal custody. The recently decided case of Costa v. Costa illustrates this scenario perfectly.
In the case, the parties were married in 1994 and divorced in 2006. Two children were born of the marriage. Upon their divorce, the parties entered into a Property Settlement Agreement in which they agreed to share joint legal custody of their two children, with the mother having primary residential custody. Furthermore, the parties agreed to talk to one another to discuss education, health, welfare and other matters of importance that affected the children.
In 2009, the father moved to Sao Paolo, Brazil. Although hours away by plane, the father still maintained contact with his children via telephone and email; however, he stopped exercising his parenting time rights. In 2013, the mother filed a motion for sole legal custody. She stated that in order for her to travel out of the country with the children, she needed her ex to provide a notarized consent form. Additionally, she needed authorization to renew the children’s passports.
The consent form was sent to the father for him to have notarized in Brazil. However, since the document was in English, the father had to hire a certified translator to notarize the consent form, a process that was tough and expensive. Since there were so few qualified translators in Sao Paolo, he told his ex that he was unable to obtain the notarization and returned the incomplete paperwork.
In 2012, the mother traveled to Brazil, but couldn’t get the consent form due to procedural difficulties. She stated that sole legal custody was imperative because the process of obtaining travel authorization from her ex-husband was “overly burdensome and placed unreasonable limitations on the minor children’s ability to travel and renew their travel documentation.” In response to this, the father stated that he gave his ex-wife a legal travel authorization to allow her to renew the children’s passports before he moved to Brazil in 2009 and also in 2012.
The mother informed the father that the authorization provided to her in 2012 was unacceptable because it was improperly filled out. Yet, when she informed him of this, he agreed to provide another authorization immediately. His only concern was that the only certified notary he had once used would prepare the document incorrectly once again.
Due to his concerns, the father expressly agreed that the court could give permission to his ex-wife to renew the children’s passports and for them to travel wherever they wanted to go without any future authorization from him. In addition to this express agreement, the father asked to keep joint legal custody of his children because he continued to play an active role in their lives, despite living in another country. He explained that he spoke with them regularly via telephone and Facebook and that he was still very much present in their lives.
In September 2013, the trial court denied the mother’s motion to modify the joint custody agreement. The court held that not only had she failed to show “changed circumstances”, but also she failed to demonstrate why joint legal custody was not in the best interests of the children. The mother appealed.
On appeal, the mother asserted that her ex’s relocation to Brazil constituted a change of circumstances, which warranted a change of custody. Yet the Appellate Division affirmed the findings of the lower court. The court stated that normally, relocation of one parent out of the country constitutes a change of circumstances for physical custody. However, since the mother was merely seeking to change legal custody, close physical proximity was irrelevant. The father was still maintaining contact with his children on a regular basis even though he now lived in Brazil.
Additionally, the court reiterated the fact that the father expressly agreed that the family court could issue the requisite authorizations by court order. Given that fact, the order was sufficient enough to resolve the passport difficulties. The Appellate Division stated that “a passport application may be executed on behalf of a minor under age 16 by only one parent or legal guardian if she person provides an order of a court of competent jurisdiction specifically authorizing the applying parent or legal guardian to obtain a passport for the minor, regardless or custodial arrangements.”
Ultimately, the court stressed the importance of both parents having equal decision-making authority with respect to their children. The main takeaway from Costa is that the courts rarely grants sole legal custody in the first place, so unless sharing legal custody will negatively impact the children’s best interests, the court will not modify the custody arrangement. For more information on this area of the law, please contact my office today. Thank you.
When A Final Restraining Order Addresses Child Custody And Parenting Time, Is That Decision Final?
As an attorney here in Middlesex County I am well aware that a New Jersey Family Court may address child custody and parenting time issues when issuing a final restraining order. A recent case also confirmed the understanding that both myself and the other attorneys at my law firm have, which is that while the restraining order may be “final,” any determinations as to child custody and/or parenting time are not (including any decisions to allow one party to remove the child from the state of New Jersey). [Read more…] about When A Final Restraining Order Addresses Child Custody And Parenting Time, Is That Decision Final?