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

How Many Motions In A New Jersey Child Custody Case Is, “Too Many?”

Litigation can be a long and strenuous process. As an experienced child custody attorney I know that a divorce or child custody case can set fire to reason, especially when there are children involved. This can lead to numerous motions, applications, and appeals. An experienced lawyer is absolutely necessary to explain complicated legal provisions in agreements and orders. Also, your lawyer should have the wherewithal to advise their client that, “this is not a motion that we recommend filing.”  I am proud to say that my law firm has lost lots of money due to myself and my associate attorneys are always straight-forward and always honest with our clients.  Some lawyers will give your delusions of grandeur of an outcome that will never happen.  The client is left only to find there is not a pot of gold at the end of a rainbow. In other words, an honest yet savvy divorce lawyer will be advised not to file a frivolous motion(s).  The recent case of Rasool v. Khan is a great of example of a wife fruitlessly filing motions and appeals for relief that lacks merit as well as the consequences.

In Rasool v. Khan, the Appellate Division affirmed the trial court’s decision to deny various forms of relief requested by wife Frida Rasool, as well as the denial of the requests for counsel fees by both Frida and her ex-husband Samiul Khan. Frida, a Swedish citizen, and Samiul, a Canadian citizen, were married in July 2001 in Sweden. They had three children together who were born in Sweden in 2002, 2004, 2006, who have duel Swedish and Canadian citizenship.

 Samiul attended law school in the United States and was employed at a law firm in New York, starting in November 2009.  In November 2011, Frida took their three children to Sweden from New Jersey without Samiul’s knowledge. Samiul filed a complaint under the Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention on the Civil Aspects of International Child Abduction, or Hague Abduction Convention is a multilateral treaty developed by the Hague Conference on Private International Law that provides an expeditious method to return a child internationally abducted by a parent from one member country to another. While the matter was pending before the Hague Convention court, in January 2012, the couple entered into an agreement that stated, among other things: New Jersey was the children’s place of residence; the parties would maintain joint custody of the children; the children can stay and reside with one parent as much as the other and would have equal access to both; and Samiul would pay Frida a monthly payment of $ 5,000 for her and the children which would include the payment of rent and electricity for their home.

In the final decision of the Stockholm District Court an order was made that the children would be transferred to Samiul. Frida would ensure that the three children would be handed over to Samiul at Landvetter Airport in Gothenburg by no later than 2pm on Friday, February 10, 2012. If that handover did not take place the three children would be collected through the police and handed over to Samiul.  While Frida returned to New Jersey with the children, in September 2012 she filed an application to relocate with the children to Sweden. In opposition, Samiul filed a cross-motion seeking enforcement of the Stockholm order, an entry of an order setting a specific parenting time schedule and appointing a parenting coordinator, and counsel fees. On an order dated January 10, 2013, Frida’s application was dismissed by the court. The parties were referred to mediation to agree upon a schedule for parenting time.

Frida filed a motion for reconsideration of the January 10, 2013 order. She asked the court to find as a matter of law that she was the parent of primary residence, or alternatively, to conduct a plenary hearing to make the same determination. The motion was withdrawn without prejudice. Frida then filed a verified complaint and motion on September 2013. She sought various forms of relief, including a declaration that she was the parent of primary residence, and had the authority to determine the children’s religious upbringing. The motion did not request a plenary hearing, and Samiul filed a cross-motion.

On December 3, 2013, a trial judge entered an order accompanied by a written statement of reasons. The court also registered the Stockholm order and its record with the Superior Court of New Jersey, with the consent of both parties. Among the other rulings memorialized, the order directed defendant to pay Frida $ 5,000 in monthly support as required by the Stockholm order, and denied counsel fees to both parties. Frida appealed from the parts of the order which denied: her request to compel Samiul to sign a release to permit her access to his immigration and employment records, her claim for arrears, her request that Samiul refrain from having his caregiver pick up the children from school and watch them until he returns home from work, her request to alter the parenting plan, her request to be declared the parent of primary residence and counsel fees. She also appealed the denial of her request for a plenary hearing in her notice of appeal.

In his statement of reasons, the trial judge noted that the definition of the phrase “parent of primary residence” is found in the Rules of the Court Appendix IX-A 14(b)(1), and defined as “the parent with whom the children spend most of their overnight time. The primary residence is the home where the child lives more than half of the overnights every year.” Samiul compiled a record of overnight stays as of November 18, 2013, which Frida did not dispute. The judge compared the nights spent with each parent and found that Frida did not meet the definition enumerated in the Rules of Court. Next, in denying Frida’s request for discovery of her ex-husband’s employment and immigration records, the judge noted Samiul’s concerns for this privacy in light of the animus nature of the litigation and Frida’s past unauthorized removal of the children from the country. Samiul had disclosed his immigration status and the employment terms at his new law firm. While the judge was sympathetic to Frida’s immigration problems, he found that she had not established that the additional information she sought would help her legal interest in any means, and absent such a showing, Samiul’s privacy interest could not be compromised.

The court further did not approve Frida’s request that Samiul not be allowed to have his caregiver pick up the children or care for them when he is not home. She failed to suggest must less establish that the caregiver was in way unfit. Actually, the caregiver in question was the same that cared for the kids while Frida was stuck in Canada for over one hundred days. The stated that the use of the caregiver was both practical and in the best interest of the children.

On appeal, Frida argued nine points. First she argued that the trial court should have granted a plenary hearing because there were numerous genuine disputes of material fact. She further argued that court should have granted her requests for discovery, counsel fees, and authority to care for the children. She further argued that the court should have made findings of fact and conclusions of law regarding the parenting time schedule, and that the rules they did set forth violate her right to equal protection of the law. Frida’s final point of argument was that in the interest to preserve the appearance of a fair hearing the case should be assigned to a different judge on remand. In Samiul’s cross-appeal he only challenged his denial of counsel fees.

None of Frida’s argument were found to have any substance or merit at all. The Appellate Division found Frida’s equal protection argument, and her contention that the case be assigned to a different to be so without merit to even warrant discussion in their opinion. Moving on, the court stated that the parties had already entered into a mutual agreement that covered the children’s residence, custody, and that each parent would have equal time with the children. Next, the court explained that Frida did not request a plenary hearing in her motion. The court noted that the question as to whether Frida was the parent of primary residence was a legal one. Moreover, the trial judge properly applied the standard set forth in the Rules of Court. The judge also properly decided that there was no dispute of material fact. There was no merit to Frida’s argument that the trial judge abused his discretion in any of the above-mentioned issued. In regards to both parties a contention that the trial judge should have granted them counsel fees, the appeal panel stated that they review an award of counsel fees for abuse of discretion. If the judge follows the law and makes reasonable findings of fact, their judgment in awarding counsel fees is given substantial deference, and disturbed only if there is a clear case of abuse of discretion. The trial judge properly considered the standard set forth in Rule 4:42-9(b), and made specific findings to support his decision to deny both requests. There was no abuse of discretion. Therefore the Appellate Division affirmed the trial judges decisions in the entirety. 

For more information regarding motion practice in New Jersey Family Courts, please contact my office today.