Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

Credibility Counts In A New Jersey Family Court, Even When It Is Your Own Child.

When a family law or divorce lawyer wants to strengthen his or her case, it is likely that he or she will introduce witnesses to testify on their client’s behalf. However, before an attorney will consider the testimony of such witnesses as part of their child custody case, they must determine if the potential witness is credible or not. A credible witness is someone who is competent to give evidence because he or she has knowledge and experience with the issues involved. For example, a credible witness can be someone who has knowledge in a particular field, such as an expert in children’s psychology. Yet, not all witnesses must be experts in a particular field to be considered credible. Often times, family members are called to testify in matrimonial cases, specifically children if they are of a suitable age. However, it is vital that when family members are called as witnesses the court take extra caution to detect bias. That was the issue in the new case of Partenio v. Partenio.

In the case the parties divorced in March 2003. Pursuant to the final judgment of divorce, the husband agreed to pay the wife weekly permanent alimony based on his projected earnings and the wife’s social security insurance benefits. Additionally, the husband agreed to maintain a life insurance policy and named the wife as the beneficiary. Also, New Jersey child support was not awarded because the husband was given primary custody of the parties’ two daughters.

As time went on, the husband started to fall behind in his alimony payments. Although his arrears were calculated, he failed to make any payments. As a result, the wife filed a motion to enforce her rights and increase her alimony since their younger daughter was almost going to be emancipated. In response, the husband argued instead that his alimony obligation should be terminated because his ex was living with another woman.

The trial court found that the husband had made a prima facie case of cohabitation and scheduled a plenary hearing to take place. At the hearing the wife testified at length, denying the claim of cohabitation. She argued that she and the woman she was allegedly living with were not romantically involved and that they merely maintained separate apartments within the same building. However, the husband disagreed and introduced several documents into evidence to illustrate his ex’s relationship with the other woman. The parties’ daughters even testified on behalf of their father, stating that their mother was cohabitating with the other woman.

After considering all of the evidence presented, the trial court held that cohabitation did not exist. The judge specifically noted that the wife’s testimony was credible and that the conflicting testimony of the parties’ daughters was not. The trial court stated that the wife had clearly shown that she and the other woman were just friends who relied upon each other to complete everyday tasks. On the other hand, the court believed that the parties’ daughters were partial toward their father since they primarily lived with him. The girls always heard their father’s side of the story in the house and were never presented with the entire story in order to make their own judgments.

In particular, the court noted that the older daughter clearly was biased against her mother as evidenced by her demeanor and superficial responses. She seemed like she wanted the questioning to be over with as soon as possible and gave little insight into the case. Although not specifically stated, the court speculated that the daughter was biased against her mother because she had left the father. Moreover, the trial court found the younger daughter’s testimony to be “replete with contradictions.” As a result, the court determined that the daughters were not helpful as witnesses and disregarded their testimony. The husband appealed.

On appeal, the husband argued that the trial court erred in dismissing his motion to terminate alimony. In particular, the husband argued that the trial court judge erred by dismissing his daughters’ testimony for lack of credibility and that the judge’s findings were against the weight of evidence.

However, the Appellate Division disagreed with the husband and affirmed the findings of the lower court. The Appellate Division stated that it was “unpersuaded that the case presented a rare instance where the Family Part judge’s factual findings must be set aside as against the weight of evidence.” The court noted that unless the trial court’s factual findings were “demonstrably lacking substantial, credible evidence”, it would defer to the lower court. Here, the Appellate Division believed that it was necessary to give due regard to the trial court’s credibility determinations after it listened to the conflicting and biased testimony of the parties’ daughters.

It is extremely important that if you or a loved one intend to ask a family member to testify on your behalf in a family law related issue to keep in mind whether or not the judge will perceive the testimony as credible. To discuss this matter further, please do not hesitate to contact my office today.