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

Do N.J. Child Custody Laws Protect Military Personnel While They Are Deployed?

         Yes.  The lawyers at our East Brunswick, New Jersey law firm have proudly represented many brave American’s who have enlisted to serve and protect our nation.  Consequently, in many of those cases our attorneys utilize the Service Members Civil Relief Act to protect our clients who have been deployed. 

         In Walker v. Gaskins, the parties were married and had four children born of the marriage.  The parties divorced in 2009 pursuant to a final judgment of dissolution of marriage entered by a court in Florida.  The mother had sole custody of the parties’ four children, meaning the children lived with the mother primarily.  The father had parenting time with the children in the summer.  The father, pursuant to the divorce, was also required to pay child support directly out of his paycheck.  The mother and children moved to Texas in 2010, and, at some point, the father moved to New Jersey.

         While in New Jersey, the father continued to have parenting time with the children in 2013 when the children lived with the father in New Jersey for the summer.  The father filed a motion with the court in September 2013 to change the parties’ custody and child support order to New Jersey.  The father requested this because the mother stated that she wanted the children to remain with the father so that she could get her life together.  As a result of the mother’s wishes, the parties enrolled the children at a public school in New Jersey.  The father gave a letter to the court that was written by the mother and confirmed that the children would be living with the father for school.  The father also stated that the mother refused to return the child support payments she was receiving despite the fact the children were now living with the father.  The father asked the court to stop the child support payments from being taken out of his paycheck and asked that the court order the mother to pay the father child support.  In response, the mother asked to postpone the court hearing and objected to the father’s request to move jurisdiction to New Jersey since the children had been living in Texas and would be returning to Texas once the school year was over. 

         On December 20, 2013, the mother attended the hearing by telephone with her attorney, who was only licensed to practice in Texas, not New Jersey.  Therefore, the mother proceeded with the hearing without representation.  The father stated that the mother arrived in New Jersey two days before the hearing, withdrew the children from school, and took them back to Texas.  Additionally, the mother filed paperwork with the court in Florida after asking for the postponement in New Jersey.  The mother testified that she left the children in New Jersey voluntarily for almost five months so that they could attend school in New Jersey; however, she claimed that she only intended for the children to be in New Jersey until she finished her Officer Training School with the military. 

         After the hearing, the court assumed jurisdiction in New Jersey under the Uniform Child Custody Jurisdiction and Enforcement Act.  The court ordered that the parents be granted joint legal custody, meaning that both parties would make important decisions regarding their children together, such as health and educational decisions.  The court also ordered that the father be the parent of primary residence and the mother the parent of alternative residence, meaning the children would primarily live with the father in New Jersey.  The court reasoned that the children had been living with the father in New Jersey for five months and that the mother had allowed the children to do so.  The court found that the children had no contacts with Florida, as they had not lived there in years, but they had significant contacts with New Jersey since they were attending school in New Jersey. 

         The mother did not return the children to New Jersey, and on January 24, 2014, the court reaffirmed its jurisdiction over the matter and issued a warrant for the mother’s arrest for refusing to return the children and violation of the December 2013 court order.  The mother filed an appeal with the court on September 16, 2014.  While her appeal was pending, the mother filed a motion with the court for reconsideration of the December 2013 order in October 2014.  The mother also asked that the court move the venue of the proceedings because she had not received a fair trial in New Jersey.  The father opposed the mother’s motion and filed a cross-motion for other relief.  Both parties appeared in court on December 19, 2014 with attorneys.  The court partially granted the father’s cross-motion, after oral arguments, but dismissed the mother’s motion due to the pending appeal because the Appellate Division might have decided a different venue was appropriate. 

         The New Jersey Appellate Division denied the mother’s motion to file an appeal on January 28, 2015 because the appeal was not made in a timely manner.  The mother again moved for reconsideration before the trial court on July 13, 2015.  The trial court rejected the mother’s motion, again, on October 23, 2015.  The trial court repeated it’s reasoning, stating that it had jurisdiction over the child support and custody issues.  The court also granted the father attorney’s fees because the mother had made the same arguments repeatedly with each motion.  The mother, again, appealed the court’s decision.

         On appeal, the Appellate Division stated that the only issues that can be heard on appeal are issues that stem from judgments or orders that are designated in the notice of appeal.  An appeal to the Appellate Division from a final judgment must be filed within forty-five days of its entry and notice given to all parties.  The forty-five day timeframe can be extended an additional thirty days but only if the appeal is actually filed within that timeframe.  If the appeal if not filed within the timeframe, the Appellate Division lacks jurisdiction to hear the merits of the appeal.  The Appellate Division stated that filing a motion with the trial court for reconsideration delays or temporarily stops the time the moving party has to appeal; however, once the motion for reconsideration is dismissed, the time to file an appeal starts up again.  Furthermore, if the appeal is not made within the timeframe, the Appellate Division must dismiss the appeal for being untimely. 

         The Appellate Division found that it did not have jurisdiction because the mother’s appeal was untimely.  Therefore, the Appellate Division stated that it could not hear the mother’s arguments, which were in relation to the December 2013 and 2014 orders.  The Appellate Division stated that the mother did not file her appeal until seven months after the timeframe to file an appeal had passed.  The Appellate Division found that the mother had filed for reconsideration with the trial court, but the time was not delayed or extended because the appeal was not filed within the appropriate timeframe.  The Appellate Division dismissed the mother’s first appeal as untimely.  The only issue the Appellate Division heard on appeal was the mother’s argument about how the timeframe should be delayed because of her military service.  The Appellate Division held that the issue was not properly presented to the trial court and, therefore, could not be raised on appeal.  Ultimately, the Appellate Division dismissed the mother’s appeal.  

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