Who Should Handle The Driving During Parenting Time or Visitation?
Our law firm’s lawyers always strive for fairness when it comes to responsibility of transportation when two parents are co-parenting their child with two different homes. Therefore, our attorneys, as well as the judges of New Jersey Family Courts, promote an equitable sharing of the driving as well as schooling and extra-curricular activities. The following case is this lawyer’s take on a recent New Jersey Appellate Division decision that explains how a court handles transportation and driving during parenting time (also known as visitation in older divorce decrees).
In Devorak, the parties were married in 1999 and later divorced in 2010. They had one child to the marriage who was born in 2009. The Property Settlement Agreement (“PSA”) executed following the divorce provided that the parents would have joint custody of their child, with the Mother having primary residential custody. The PSA also provided that the Father would pay $183 per week in child support, as well as 79% of the child care costs. When the divorce was executed, both parties lived in Woodbridge. They agreed that they would share alternate weekends for parenting time with the child. The Father would pick the child up after leaving work on Friday, and he would have her back by 8 p.m. on Sunday evening. The PSA also stated that the Father would be responsible for all transportation for his parenting time unless another agreement was mutually reached by the parties.
The Mother later moved to New York, but in 2013 a consent order was executed in which the Mother agreed to move back to New Jersey, and the Father agreed to temporarily provide transportation to and from his weekend parenting time until the Mother was able to relocate to New Jersey. The consent order did not address the parties’ driving responsibilities once the Mother had returned to New Jersey. At this time, the Mother has relocated to New Jersey and currently lives in Roseland and the Father lives in Ewing.
On September 20, 2016, the Father filed a motion for the parties to “share equally the driving responsibilities regarding parenting time” as well as a request to reduce his child support obligation due to a change in circumstances. The Mother opposed the Father’s motion, seeking an increase in his support obligation and requiring him to pay 80% of all expenses for the child, including “all unreimbursed medical and dental expenses, school-related expenses, and extracurricular activities.” The Mother also sought an order requiring the Father to “do all the traveling in connection with his visitations with the parties’ child.”
In his response, the trial judge reviewed the parties’ living situations since the time of the final judgment of divorce. He determined that it was both fair and equitable to share the transportation responsibilities equally and therefore granted the Father’s motion. He instructed the parties to “agree to a pickup and drop off location equidistant between their current residences of Ewing and Roseland.” In regard to the Mother’s request for an increase in child support, the trial judge determined that she had not presented any change in circumstance that would warrant a modification of the Father’s child support obligations.
In her appeal, the Mother argued that the trial judge’s decision to modify the PSA to equally share transportation responsibilities was improper “because matrimonial agreements are consensually entered into and they should generally be honored.” She argued that the Father was receiving a benefit by paying a “modest” amount in child support in exchange for his agreement to do all of the driving. She also stated that since having a second child from her new marriage, she now “is required, on a weekly basis, to do all the transportation for the parties’ daughter.”
The Mother further argued that the trial judge erred in finding that she had not presented sufficient proof of changed circumstances. She alleges that her financial circumstances have changed since she was required to relocate to New Jersey and that her new husband has been unable to sell their residence in New York. Further, she argues that a review of the Father’s updated financial information shows that his current child support obligation is “lower than that which would be calculated under New Jersey’s guidelines.”
The Appellate Division agreed with the trial judge in denying the Mother’s motion and granting the Father’s request to share transportation responsibilities. The court found that an equal division of transportation responsibilities with a negotiated meeting point between the parties’ residences was both fair and equitable. Following the relocation of both parties to Roseland and Ewing, there was no error in establishing a new transportation plan to replace the consent order that temporarily required the Father to provide transportation to and from New York until the Mother moved to New Jersey.
At the time the PSA was executed, both parties lived in Woodbridge making the transportation responsibilities for the Father much less burdensome. After both parties relocated, however, the Appellate Division agreed with the trial judge’s contention that it was proper to reassess the parties’ living situations and related responsibilities. Because the parents now live significantly further away from one another, the Appellate Division agreed that the trial judge had correctly exercised his discretion in modifying the PSA to require equal sharing of the transportation responsibilities and an equidistant meeting spot between the Mother and Father’s residences.