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

Does My New Jersey Child Custody Case Deserve A Full-Blown Hearing?

In a child custody hearing, the facts are everything.  The lawyers at my family law and divorce law firm leave no stone unturned before we are off to Middlesex County Family Court (and others throughout the state) to engage a child custody trial.  One of many reason that you should always have an attorney who only handles family law cases is that we understand what facts must be placed on the record, either by certification or testimony, to demonstrate enough proof that your child custody case deserves a full-blown hearing.

Any dispute of fact requires a hearing. The need to hold a plenary hearing is especially compelling when there are material issues of factual dispute raised by the litigants. A court may not make credibility determinations or resolve genuine factual issues based on conflicting affidavits. A failure to conduct a plenary hearing when there are genuine issues of fact demands a reversal of judgment and a remand for a plenary hearing. In the recent custody case of Skinner v. Cole, a father had a compelling case for transfer of custody. The son even backed up each one of his father’s contention, and stated that he wished to live with him. A motion judge found the need of transfer exceedingly valid. He transferred the child based on a personal interview he had with him. Still the New Jersey Appellate Division found that because the mother had made allegations of fact that stood in conflict with the facts of the father, a plenary hearing was necessary. Disputes of fact will always demand a hearing even when one sides facts are supported by the child.

In Skinner v. Cole, mother Janice Skinner appealed the August 6, 2014 order that transferred the physical custody of her child Noah, from her to the child’s father Bruce Cole. During the time of the transfer of Noah to the father, Janice had been Noah’s primary caretaker since the time of his birth. Janice and Bruce never got married, and the record was unclear whether they ever lived together after Noah’s birth in 2000. Janice took Noah and moved to Pennsylvania when the child was twenty-two months. Bruce remained in New Jersey.

Bruce filed a non-dissolution complaint in June 2014, in which he sought custody of Noah. Non-dissolution cases are cases which involve issues of paternity and child support and/or alimony payments, and/or custody and visitation issues between persons who are not married or those persons who are married but have not filed for divorce yet. He filed a certification in support of his application, in which he stated that Noah, who had reached the age of thirteen years, expressed a desire to live with his father. Bruce argued that Noah complained that too many of Janice’s relatives lived in their home and that his mother often fought with them over their drug use. In the years before the father’s non-dissolution application, five relatives lives in Janice’s home. The relatives allegedly have to sleep on couches or the floor because of the small size of Janice’s house.  Furthermore, Bruce reported that usually Janice worked outside the home and did not return home from work until 7:30. Noah would complain to his father that his mother would be too tired to spend time with him after work and ignored him. Noah also did not like the school he attended, and claimed that he was routinely assaulted by other students there. Additionally, he felt that he was not being academically challenged at the school.

Allegedly, Noah informed his father that he wanted to live with him because his house was peaceful. Bruce lived alone, and maintained that he had a “excellent” relationship, and that Noah had friends in his neighborhood. Furthermore, Bruce’s work schedule allowed him to be home daily by 5:00 p.m. Finally, when Noah told his mother that he wanted to move in with his father, she supposedly replied that she would no longer receive child support, and as a result lose her house.

In her response certification, the other claimed to have a good relationship with Noah. She also questioned Bruce’s commitment Noah. According to Janice, Noah told her that his father threatened to stop seeing him if he lost his motion for custody. She further contended that her son told her that Bruce often belittled her and talked about the case with him. Janice also noted that Noah suffered from a medical condition. This condition was prone to case dramatic changes in Noah’s blood pressure. His glucose levels needed to be tested twice a day to properly monitor and manage his condition. According to Janice, her ex-husband would not regularly or properly test Noah’s blood sugar levels. She claimed that Noah told her that his father tested his blood sugar before meals instead of after, when testing is supposed to be done. She further contended that Bruce did not make sure Noah regularly exercised during parenting time, despite his knowledge that exercise reduced glucose levels and could potentially assist in avoiding diabetes.

In her certification, Janice also claimed that there was no drug use in her house, and that only she, Noah, his grandmother, and his cousin lived in their house. She also pointed out that Bruce lived in a small house, and that the basement would likely end up becoming Noah’s bedroom. She argued that this part of the house  would be difficult to escape from if a fire started in his room. Her final point of contention was that she was trying to have her son, an honor roll student, transferred to a different school district while he remained in her primary custody.

Following oral argument for the motion, the motion judge order Janice to bring Noah to court later that day for an interview. The motion judge stated that he would decide the motion at the completion of the same interview. No further testimony was taken by the judge, from either the parties or any other witness. Noah stated that he wanted to live with his father during the interview. He informed the court that his reason for wanting to live with his father was based on the fact that he spent more time with him than his mother. He further explained that his father actually did properly test his glucose levels, and that his bedroom would not be the basement if he was allowed to move in with him. He noted that while at his mother’s house he would mostly engage in solitary activities like playing video games. Moreover, while he understood that his relatives needed a place to stay, he did not much care for the relatives that live at his mother’s house. He even suspected that some were, or had been at some time, addicted to drugs. Unsurprisingly, he also complained about his school, and the fact that his mother had still not been able to arrange a transfer for him.

Following the interview, the judge informed the parents of what Noah had said. He then quickly addressed some of the factors in New Jersey Statute 9:2-4(c), and ordered that Noah be transferred into his father’s custody. The judge found that at his mother’s house he dealt with genuine, difficult struggles, tempered by the heroic acts of his mother who was merely trying to hold an entire family together. However, there was also an alternative setting available to him with his father. Bruce did not have nearly the  same level of pressures that his mom had, and also had the ability to spend time with Noah to provide him with a different sort of lifestyle. The judge stated that he though Noah needed the chance to spend time in a different environment and setting. He made sure to note that he though both parents were fit, but that the stability presented by his father’s home environment better served Noah.

Janice appealed and argued that because of the factual conflicts in the certifications, the trial court should have held a plenary hearing before transferring Noah into Bruce’s custody. The court stated that the need to hold a plenary hearing is especially compelling when there are material issues of factual dispute raised by the litigants. Moreover, a court may not make credibility determinations or resolve genuine factual issues based on conflicting affidavits. A failure to conduct a plenary hearing when there are genuine issues of fact demands a reversal of judgment and a remand for a plenary hearing.

In Skinner v. Cole, there were was a real dispute over if the father was properly testing Noah’s glucose levels. This was a very serious issue that could not be resolved without a hearing or upon a thirteen year old child’s testimony. Furthermore, while Noah understandably did not want to live with drug users, his mother denied that any guests in her home used drugs. Therefore the Appellate Division had no choice but to vacate the August 6, 2014 order and remand the case for a plenary hearing. During this time Bruce would continue to be the primary caretaker, pending the court decision. 

My office is who I ask you to contact in any situation involving the welfare and best interests of your child..  Thank you.