How Important Is A Consent Order In A N.J. Child Custody Case?
This legal document, which is a court order of the Family Part, of the Superior Court of New Jersey, is essential in any child custody case. For example, even if the child custody expert selected for you by your lawyer were to recommend that you should be the parent of primary residence, a Consent Order stating that you have nevertheless agreed to allow the other parent o be the primary parent would prevail absent your attorney showing a major change of circumstances since the Consent Order was entered into by a New Jersey Family Court.
In Dardir v. Khalil, the parties were married in 2009 and had one child born of the marriage in 2011. The parties divorced in 2013 and incorporated a property settlement agreement into the dual judgment of divorce. A property settlement agreement is an agreement by the parties that sets out the terms of the divorce regarding certain things like child support and custody, alimony, and property division. In their property settlement agreement, the parties agreed that the child’s mother would be the primary caretaker.
In 2014, the father filed a motion with the Superior Court of New Jersey Family Part seeking to be made the child’s primary caretaker. On June 14, 2014, the court ordered that Ronald Silikovitz, Ph.D. conduct an evaluation to determine custody. The court also appointed a guardian ad litem to represent the child and the child’s interests. Lastly, the court ordered a plenary hearing, which is a hearing where the parties’ testimony is needed to determine important factual disputes, to be scheduled after the doctor finished the custody evaluation. After completing the reports, the guardian ad litem recommended that the child continue to live with his mother, but Dr. Silikovitz determined that the father should be the child’s primary caretaker. The court conducted a plenary hearing, but the parties settled the issue after only one day of testimony. The parties entered into a consent order on October 6, 2015 that stated that the mother was to continue as the child’s primary caretaker. The parties also agreed to utilize a parenting time coordinator to resolve any future issues. The father agreed to pay sixty percent of the parenting coordinator fees while the mother paid forty percent of the fees.
On October 3, 2016, the court denied the father’s motion requesting to become primary caretaker. The court held that the father failed to show a change in circumstances that would justify a modification to the parties’ agreement. The court also denied the father’s request for reimbursement of the parenting time coordinator fees, reasoning that the father agreed to pay sixty percent of the fees in the consent order. On the same day, the court granted the mother’s cross-motion seeking the court’s permission to take the parties’ child for a neuropsychological evaluation. The father admitted that he was not opposed to such an evaluation and he even stated that he believed the child had various issues that needed evaluating. Therefore, the court found it in the best interests of the child to have the child evaluated. Additionally, the court ordered the father to pay a portion of the child’s after-school care expenses.
On appeal, the father made five arguments. First, he argued that the court was wrong to deny him custody of the parties’ child. Second, he argued that the court was wrong to deny him reimbursement of the parenting coordinator fees. Third, he argued that the decision ordering him to contribute to the child’s after-school care costs should be reversed. Fourth, the father argued that the court was wrong to grant the mother’s motion seeking a neuropsychological evaluation. Lastly, the father argued the matter should be heard by a different judge on remand. The New Jersey Appellate Division, on appeal, discussed the father’s first two arguments. The Appellate Division found that the father’s other three arguments were meritless and did not warrant further discussion.
The Appellate Division rejected the father’s first argument. The court stated that child custody orders are always subject to modification because they are not final. The court noted that the main consideration when determining custody is the best interests of the child. Furthermore, the Appellate Division explained that in order to modify a custody arrangement, the party seeking to change the arrangement must show that there has been a change in circumstances and that it is in the child’s best interests to modify the arrangement. In order to determine whether the moving party has demonstrated a change in circumstances, the court must consider the terms of the arrangement or any agreement the parties’ made regarding custody. Additionally, the Appellate Division stated that it would not reverse the trial court’s decision when the decision was made based on adequate and credible evidence.
The Appellate Division found that consent order entered into by the parties on October 6, 2015 was the most recent determination of the child’s best interests. The consent order stated that the mother was to continue to be the child’s primary caretaker, and the trial court found that the father did not show that there was a change in circumstances that warranted modification of the consent order. The Appellate Division stated that the father’s argument was that Dr. Silikovitz determined that the father should be the primary caretaker before the parties agreed to the consent order; however, the court stated that the doctor’s determination was subject to challenge and that the doctor’s opinion no longer had value because the parties came to their own agreement. The Appellate Division held that the father did not show a change in circumstances justifying a modification of custody.
The Appellate Division also rejected the father’s second argument regarding after-school care costs. The father argued that after-school care costs are extracurricular activities, which need his express consent if he is to pay. On appeal, the Appellate Division disagreed that after-school care is considered an extracurricular activity. The court stated that without a valid excuse to not pay child support, a parent must give money toward work-related care costs. The Appellate Division found that the father was not excused from his duty to pay child support or work-related care costs; therefore, the Appellate Division agreed with the trial court and affirmed its decision.
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