As experienced child custody lawyers, the attorneys at my New Jersey based law firm understand that if a parent leaves their child in the custody of the other parent, it will likely be very difficult to regain residential custody of the child. The following case, handed down from New Jersey’s Appellate Division, is an excellent example of why you should never leave your child for an extended period of time if you hope to ever regain physical custody.

In Dwyer v. Dwyer, mother Susan Dwyer appealed from an order dated July 21, 2014 from the Superior Court of New Jersey, Family Part of Ocean County that denied her request to revisit a previous order dated August 9, 2013 that established her ex-husband, Michael Dwyer, as the sole residential custodian of their youngest daughter and memorialized her agreement to pay $ 100 of child support a week. Her appeal was denied because she had moved to Florida and left the child behind with her father.

Michael and Susan got married in 1989 and divorced twenty years later in 2009. Their final judgement of divorce incorporated a property settlement agreement, in which the parents agreed to share joint legal custody of their four children. According to the property settlement agreement, Susan would have primary residential custody of their two daughters, while Michael would have primary residential custody of their two sons. However, their eldest daughter also ended up living with her father. Presently, both sons were now studying in college, and Michael was paying for all of the kid’s education himself.

The parents entered into a consent order in April 2012. They agreed to share equal residential custody of their youngest daughter. The parents agreed that neither would be obligated to pay the other child support, because, according to the worksheets, the child support Susan would owe Michael for the children living with him would only be slightly less than the amount Michael would owe her for the children living with her.

Five months after the consent order was entered, in September 2012, Susan moved to Florida, and the youngest daughter started living with Michael full time. Susan filed a motion to enforce an alimony obligation and compel Michael to abide by their shared parenting agreement in regards to their youngest daughter in May 2013. In response, Michael cross moved for an order to confirm the custody arrangement already in effect for the past eight months and deny Susan’s requests to change custody. He also wanted child support for all four children. Susan filed a reply certification in which she acknowledged that she moved to Florida, but denied that she had abandoned the youngest daughter, as Michael had alleged. Susan contended that Michael had “encroached” on her parenting time ever since the divorce was finalized, and refused to let her spend time with her daughter when she came to visit New Jersey.

The Family Part judge who heard the motion issued a tentative order in which Susan’s motion for custody was denied, because of the existing status quo after her move to Florida. Still, the Family Part judge held that Susan should be allowed “open and liberal time” with the former couple’s youngest daughter, and calculated that she should be required to pay $ 116 in child support every week.

Susan’s attorney advised her to accept the Family Part’s tentative custody decision, and reported they had reached an agreement with Michael’s attorney for a child support obligation of $ 100 a week. Michael and Susan put their agreement on the record, and the Family Part judge accepted it as an allowable deviation for the child support guidelines award. As such, on August 9, 2013, the judge entered an order that granted Michael sole residential custody of the parent’s youngest daughter, and obligated Susan to pay $ 100 a week in child support.

Susan hired a new attorney ten months later, and filed a motion to reopen the prior custody order under Rule 4:50-1. She contended that the Family Part inappropriately changed custody to Michael, and ordered her to pay child support without first holding a plenary hearing. Plenary hearings are held either before or after a trial and are usually held to determine the merits of a motion because the court needs to hear the testimony of witnesses to reach a decision. Michael cross moved and requested a set parenting time schedule of every other weekend and one evening every week during the school year. Upon summer vacation, this would convert to one overnight every week. Susan’s motion was denied by the Family Part. The judge made note that she failed to the contest the essential fact that in September 2012 she had relocated to Florida and left the youngest daughter in Michael’s custody, where she remained at the time of the order entered on August 9, 2013. The Family Part judge also denied her claim that the amount of the child support obligation was erroneous, because Susan herself had agreed to that child support award on the record. Michael’s cross-motion for a set visitation schedule was granted.

Susan appealed the decision and argued that the Family Part judge abused her discretion by refusing to reopen the order from August 9, 2013, failing to modifying the child support obligation, and not revisiting her request to transfer the child’s custody to her. She further contended that, on remand, the issue should be given to a new judge, and that the prior Family Part judge should not be able to hear any other issues regarding child custody or child support, arising from this case.

The New Jersey Appellate Division explained that according to Rule 4:50-1, that through a motion, a court has the power to relieve someone from a final order or judgment for: (1) mistake, surprise, inadvertence, or excusable neglect; (2) any newly discovered evidence that would most likely change the order or judgement, that could not have been discovered in time to move for a new trial under Rule 4:49; (3) misrepresentation, fraud, or any other misconduct by the other side; (4) the order or judgment being void; (5) the order or judgment has become released, discharged, satisfied, or a past order or judgment upon which it was based had been vacated or reversed, or is no longer fair; or (6) any other reason that the court may believe justifies relief from the order. Any decision to vacate a judgment on grounds enumerate in Rule 4:50-1 is within the Family Part’s sound discretion and is guided by principles of equity. The New Jersey Appellate Division will not change a trial court’s denial of a motion of relief from a judgment under Rule 4:50-1, unless there has been a clear abuse of discretion. The New Jersey Appellate Division applied that standard to the case at hand and found that no such abuse of discretion had occurred.

The order dated August 9, 2013 simply acknowledges the de facto custody status of the youngest daughter after Susan had relocated to Florida. The fact that Susan denied “abandoning” her daughter does not change the essential fact that her move to Florida caused a de facto change in custody. The August 9, 2013 order merely memorialized the custody arrangement existing at that time, and the parent’s agreement for child support, and thus there was no need for a plenary hearing. Therefore, the Family Part did not abuse its discretion to refuse to reopen the case ten months after the fact. Still, the appellate panel explained that Susan was free to file a Lepis motion to modify both child support and custody upon a showing of changed circumstances. For the above stated reasons, the New Jersey Appellate Division denied Susan’s appeal and affirmed the order of the Family Part.

If you face a relocation issue regarding your child, please contact my office to learn how we may protect you and your child.