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

If I Am In The Military And Deployed, Who Gets Custody Of My Child?

During my many years of practicing child custody lawyer here in New Jersey, I have had the good fortune of representing many members or our armed service.  When it comes to child custody, these cases can get extremely complex, which is why the lawyers at our law firm only handle family law related cases.  The following is this lawyer’s analysis of what happens in a custody case when a parent of primary residence (a/k/a/ residential or physical custody of the child) is deployed to Iraq.

In Faucett v. Vasquez, the New Jersey Appellate Division reviewed whether a parent filing a motion for modification of child custody, has the burden to prove “changed circumstances that affect the welfare of the child,” when the parent of primary residence is in the United States military, and is about to be deployed from home for a year. The appellate panel held that there is no presumption that just because the parent of primary residence was about to be deployed in the military, modification of child custody is warranted. Still, the court noted that when a fit parent shows the parent of primary residence is about to be deployed for a significant period of time, such as a year or more, he or she has established a prima case, and has the right to a plenary hearing to resolve any disputes of material fact in regards to the best interest of the child, and if those best interests will be served by the modification of child custody. Therefore, the New Jersey Appellate Division dismissed the order denying the motion, and ordered the case be heard again.

Andrew Faucett and Darianna Vasquez got married on January 11, 1997. They had a son together who was also born in 1997. The couple divorced on December 11, 2001. In 2002, Andrew filed a motion to resolve issues of custody, parenting time, and support.  An order dated July 26, 2002 provided that both parents would continue to have joint legal custody, and Andrew would be the parent of primary residence. Andrew then filed a motion to reduce Darianna’s parenting time, which Darianna opposed and cross-moved for a temporary transfer of custody because Andrew allegedly had a “military approach to childrearing.” The judge refused to reduce Darianna’s parenting time because Andrew failed to show a valid change in circumstance that warranted a change, but also denied Darianna’s motion to be designated parent of primary residence. Instead, the judge ordered both parents to take part in mediation to resolve their custody and parenting time disputes.

In January of 2009 Darianna filed an order to show cause for the immediate transfer of child custody, because of Andrew’s looming deployment as a member of the military. The same judge denied the order to show cause and found that there was no “probability of immediate and irreparable harm.” The judge explained that the deployment was not a sudden or new development, and both parents knew about it well in advance. Furthermore, Darianna failed to show that the child would be harmed by continuing to live with Andrew’s spouse in the same house he had been growing up in.

As a result, Darianna filed a motion to modify custody and parenting time, and also wanted child support if she did get custody of the child. She based her motion on the fact that Andrew was about to be deployed for a year in Iraq, and he wanted his new wife to take care of, and have primary residential custody of the child. Darianna contended that while his father is away, the child should live with her. The same judge as before, heard oral argument on February 13, 2009, and entered an order the same day. The judge started his written opinion by stating that Andrew was on active military duty, and therefore, had the right to protections enumerated in New Jersey Statute 38:23C-4, which provides that “no judgment or final order” may be issued against a party while on active military duty. The judge, however, did not intend to issue a final order.

The judge found that there was no immediate need for a change of custody, and noted that the child was in the same school, by his friends, and had all his medical needs met. Nor did the child report any problems with his step-mother’s care. The child would not be living with a distant relative, but with an “intact family unit” that he had been a part of since 2002. The change in residential custody would also disrupt the child’s school year. Darianna appealed the decision.

On appeal, Darianna argued that the Family Part judge abused his discretion by refusing to modify the 2002 order and give her primary residential custody while Andrew was deployed overseas. Conversely, Andrew contended that Darianna failed to prove a prima facie case for modification of child custody. The appellate panel started by explaining that child custody issues are always decided by the best interests of the child. The best interest analysis is based on the factors enumerated in New Jersey Statute 9:2-4(c). These factors include: if the parents can cooperate, communicate, and agree in child rearing matters; the parent’s willingness to accept custody; the relationship between the parent and child; any history of domestic violence; the child’s preference, if of sufficient age and capacity to form a reasonably intelligent decision; the child’s needs, the offered home’s environment and stability; the quality of education offered; and both parents’ fitness. Furthermore, the New Jersey Appellate Division explained that child custody changes may not be ordered without a plenary hearing. This is because even a temporary change in custody can create a new status quo.

To be successful in a motion to modify child custody, a moving party must first make “a prima facie showing . . . that a genuine issue of fact exists bearing upon a critical question such as the best interest of the child. Then, only after a prima facie showing has been made, the other party has a right to a plenary hearing to resolve the facts in dispute. The appellate panel found that Andrew was not about to be deployed, there would be no need for a plenary hearing. Darianna, admitted herself that not much had changed since her prior request for modification was denied in February 2008. However, the appellate panel found that Andrew’s deployment sufficiently satisfied Darianna’s burden to establishing a prima facie case of changed circumstances that could affect the child’s welfare. As such, she had the right to a plenary hearing. Andrew would be physically separated from the child for twelve months, and he admitted himself that it would be difficult to contact his son. Therefore, he would not be exercising traditional custody for a significant period of time. To the appellate panel it was clear that the child’s day to day custody would definitely change.

Therefore, the New Jersey Appellate Division held that in a motion to modify child custody, a parent’s military deployment or absence from the home for a substantial period of time is a sufficient basis for the Family Part to investigate the matter to find a solution that serves the best interest of the child. This does not mean that the non-deploying parent is always entitled to modification, only that a plenary hearing must be held in order for a determination to be made. 

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