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

For A Transfer Of Custody Of Children In New Jersey, The Best Interests Of The Children Always Comes First

Child custody disputes are inherently contentious as emotions run high. The lawyers at my law firm promote parents to agree to a custody and parenting time arrangement.  Such agreements are memorialized by a Consent Order, which is prepared by the respective attorneys and executed by the judge of a New Jersey Family Court.  However, many parents change their minds later on, sometimes for selfish reasons and others times because they feel a change is best for the children. However, the bottom line when one parent wants to transfer custody or even change parenting time arrangements, they must demonstrate that any change is in the best interest of the children.  As this can get complicated legally, it is always recommended that your lawyer only handles family law and child custody cases. In Hand v. Hand, mother, Christina Hand, appealed an order of Superior Court of New Jersey, Family Part that denied her request to transfer custody of her two sons from her ex-husband, John Hand, to herself. Let’s see why.

John and Christina had two children together, named Tyler and John. They divorced on November 5, 2001 when John was eight years old and Tyler was six years old. Before their divorce, Christina and John signed a consent order on May 1, 2001. This order stated that according to a past order dated February 5, 2001, custody of Tyler and John was with their father, and required Christina to pay child support to John weekly. A separate consent order issued June 20, 2001, explained that when the parties took part in mediation, the parents had agreed to a parenting plan and mediation agreement on June 5, 2001. The June 20, 2001 consent order required the parents to abide by the provisions of the parenting plan. According to the parenting plan, the children were to live with their father. Christina was allowed parenting time and visitation on the weekends, and the parents agreed to split holidays, and the summer weeks when the children would not be in school. The Family Part denied Christina’s request to set aside the June 20, 2001 consent order, on October 5, 2001.

Christina wanted the Family Part to transfer custody of the two children to her, without the benefit of an investigation by either the Family Division, a neutral expert assigned by the court, a report by a guardian ad litem, or without a referral to the mediation program that originally resolved the custody issue. Moreover, Christina’s motion did not request discovery, nor did she ask the court to hold a hearing. She only asked for a change of custody. Despite these deficiencies, the New Jersey Appellate Division decided to review her argument that the trial court was wrong in refusing her motion to change custody without hold a hearing because of the courts parens patriae duty to protect the welfare of the children. Parens patriae is a doctrine that grants the inherent power and authority of the state to protect persons who are legally unable to act on their own behalf. The parens patriae doctrine has had its greatest application in the treatment of children, mentally ill persons, and other individuals who are legally incompetent to manage their affairs. The state is the supreme guardian of all children within its jurisdiction, and state courts have the inherent power to intervene to protect the best interests of children whose welfare is jeopardized by controversies between parents.

On appeal, the New Jersey Appellate Division stated that’s the court’s places the most importance on the best interest. In promoting this interest, the court is to concentrate on the “safety, happiness, physical, and mental and moral welfare” of the children, regardless of what the parties may have agreed to beforehand. According to the 2000 New Jersey Supreme Court case of V.C. v. M.J.B, custody disputes are to be settled using a best interest of the child analysis that considers the factors provided in New Jersey Statute 9:2-4(c). Furthermore, a parent  trying to modify or change a child custody order or agreement, must show changed circumstances that have an effect on the welfare of the children. A hearing becomes required when the proof and evidence submitted demonstrate that there is “genuine and substantial factual dispute” concerning the children’s welfare, and the trial judge concludes that a hearing is in fact necessary to resolve the same factual dispute. Moreover, a parent must “clearly demonstrate” that a genuine issue of material fact exists before a hearing becomes necessary. If Family Parts courts did not have this standard, courts would have to hold hearings on every single modification motion regardless if it had merit or not.

The New Jersey Appellate Division noted that there are some circumstances and cases in which there is clearly a need for a evidentiary hearing  to decide child custody or parenting time issues, such as when there has sexual abuse, when child repeadetly expresses a desire to live with the other parent, when a parent is in prison, or when a child suffers from significant behavioral problems. In many other cases, however, the need for a hearing is not so clear, and the threshold question is whether the parent requesting modification of child custody or parenting has made a prima facie case that a plenary hearing is necessary.

In support of Christina’s motion to change custody, she claimed that while they were married, John put his social life and friends before his family, and that he was an alcoholic. She further claimed that the children were forced to care for themselves on numerous occasions while John was out drinking. John vehemently denied these accusations and stated that he was not an alcoholic, he did not drink in excess, he did not go to bars, and never had a DUI, or any other problems regarding alcohol. Christina’s also stated she was worried for the children’s emotional and physical wellbeing, but again she did provide any proof. Furthermore, she did not explain why she had agreed during the divorce proceedings to give sole custody of the children to John. The children’s report cards also indicated that they were A and B students. The trial court made findings of fact and the judge stated that if the father was an abusive alcoholic then the children would not be A-B students. The judge went on to state that Christina offer no proof that John was doing anything besides being a good father. John attended all the children’s activities, he went to all the parent-teacher conferences, the children had great grades and were well adjusted in school, and school principal spoke highly of him. The trial judge found that Christina had not have a prima facie case that a hearing was required.

The New Jersey Appellate Division noted that Family Part judges are often required to make hard decisions regarding the well-being of the child. However, because of their special expertise in family matters, appellate courts do not disturb their fact finding or the exercise of their discretion. The appellate panel found that the trial judge appropriately determined that there was no need for a plenary hearing because Christian failed to prove circumstances had changed so much that it was clear the custody arrangement was negatively affecting the children’s welfare. In fact, the New Jersey Appellate Division stated that holding a plenary hearing would only disrupt the lives of the parents and children, and the hearing would be unlikely to lead to a different result anyway.

Christina’s claim that the children could be victims of physical abuse were completely with out any proof or evidence. There was also little to no evidence for her other allegations as well. She stated that John was irresponsible and “during the time we were married” his friends and social life were his first priority and the family was second. However, the two divorced on November 5, 2001, and any behavior that came before the signing of the parenting plan incorporated in the judgment of divorce did not factor in the change of circumstance analysis. Therefore, the New Jersey Appellate Division found that the trial court did not abuse its discretion.

My office stands prepared to assist you if you face a child custody issue here in the state of New Jersey.