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

May A Child Custody Situation Be Addressed In Both Family Court and Criminal Court Simultaneously?

As a child custody lawyer here in New Jersey, it is often that I work in coordination with my client’s criminal attorney.  Needless to say, a parent’s criminal history or even pending criminal charges may be extremely relevant in a child custody case in a New Jersey Family Court.  The following case is a great example of the conflicts that may arise in this type of situation.

In Paterno v. Paterno, father Wayne Paterno filed a post judgment motion to enforce his visitation rights under his property settlement agreement with his ex-wife. After a dispute between Wayne’s mother and his ex-wife Mary Paterno, Mary prevented Wayne from seeing their children for over two weeks. This act violated their property settlement agreement. In response, Wayne filed a motion to enforce his visitation rights, and the matter was subsequently referred to the county prosecutor. The question before the Superior Court of New Jersey, Bergen County was whether it had jurisdiction over the issue in light of the criminal statute governing this conduct. This was a case of first impression in this state and concerned whether the Family Part courts could retain full jurisdiction to grant all relief that a court of equity could grant prior to the enactment of New Jersey Statute 2C:13-4, entitled “Interference with Custody.”

Wayne alleged that Mary denied him visitation rights with his daughter Jennifer. In Mary’s responding certification, she state that because of an argument between herself and Wayne’s mother, Wayne instructed her not to drop the infant child off at his mother’s house in the future. In his reply Wayne alleged that the parties argued because Mary told his mother that she would no longer see her granddaughter, and that Mary then kept him from seeing their child for more than two weeks in violation of both their property settlement agreement and in violation of New Jersey Statute 2C:13-4. Because the latter law is a criminal statute the matter was referred to the Bergen County Prosecutor.

The Superior Court of Bergen County, however, found that while Mary may have been in violation of a criminal statute, she might also have been simultaneously in violation of Rule 1:10-5, “Violation of Litigant’s Rights.” Moreover, the legislative history regarding the criminal statute does not imply the removal of sanction control from the power of courts of equity. In fact, equity itself demands that issue remain with the jurisdiction of the Family Part court, as well as being referred to the prosecutor for potential action.

New Jersey Statute 2A:34-23 provides courts with broad authorization for care, custody, education, and maintenance determinations in divorce proceedings, as the circumstances of the case shall render fit, reasonable, and just. The New Jersey Supreme Court stated that the legislative intent behind this provision was to give courts wide discretion to create creative solutions in matrimonial custody cases. The statute’s language is sufficiently broad to include the authority to order joint custody.

Moreover, statutory law, specifically N.J.S.A. 9:2-4, grants parents in child custody litigation both equal rights and equal responsibilities regarding the care, nurture, education and welfare of their children. While the statute does not explicitly authorize joint custody in plain language, it does indicate a legislative preference for custody orders that allow both parents to be fully involved in their children’s lives following a divorce. Furthermore, this approach is consistent with the common law principle that the court should, in the best interest of the child, utilize every effort to attain for the child the affection of both parents rather than one. Common law, also known as case law or precedent, is law developed by judges through decisions of courts and similar tribunals that decide individual cases, as opposed to statutes adopted through the legislative process or regulations issued by the executive branch. Therefore, joint custody complies with both New Jersey statutory law, and the established common law policy of this state as well.

Additionally, because sole custody determinations are absolute, with one parent who “wins” and the other “loses,” the children more often than not, unwittingly become the subject of bitter custody contests and unnecessary post-divorce stress. Taking everything into consideration, the best interest of the child are clearly not served by sole custody. At the heart of the joint custody policy is the assumption that children in a unified family setting develop attachments to both parents, and the termination of either of these attachments is detrimental to the child’s best interest. Through its legal custody element, joint custody, strives to maintain these attachments by allowing both parents to remain decision-makers in their children’s lives. Furthermore, alternating physical custody allows children to share the intimate day-to-day contact necessary to strengthen a true parent-child relationship, with both parents.

Even though there was a clear lack of available case precedent, the Superior Court of Bergen County found that such absence, in of itself, is not determinative of the issue. A court of equity cannot be barred from acting by a lack of precedents, nor by the uniqueness of the issue, especially when there is no reasonable alternative solution or remedy. According to the 1967 case of Co. v. Jersey City, “Law and equity now being merged under our practice and procedure, there is concurrent jurisdiction in the Superior Court. Thus, this court will exercise its equitable powers to reach a fair and just result.” The judge noted that while this was a civil, there was no reason for deviation from this pronouncement.

The judge stated that “nowhere are the equitable power of the Chancery Division more crucial than in the realm of child custody and visitation in post-matrimonial actions. While the court did acknowledge long-standing precedents concerning the fundamental right of each of the married partners to pursue his or her own destiny, there is some restraint on that freedom of pursuit which is imposed by the fact that there are children of the failed marriage. Still, these restraints go only as far as requiring that the decisions of the custodial parent be reasonably consistent with the right of the child and the non-custodial parent to maintain, develop, and promote a parental relationship. The court recognized that the personal wishes of a parent do not govern the conditions of custody or visitation. However the court tempered this recognition by stating that “this court abhors nothing more than the abuse of visitation and custody provisions by a parent merely acting out of anger or a sense of revenge.” Courts cannot instill decency and understanding in people or teach them how to be mature adults. That is not the courts function. People are who they are for better or for worse, but unfortunately may influence others whose lives they tough in subtle ways which are not necessarily in their best interest. It is a well-established fat that the law favors visitation and protects against the restricting of visitation rights. The paramount 1956 Supreme Court of New Jersey case of Daly v. Daly, stated that the courts should endeavor that children of separated parents should be given love and respect for both parents, and where children are in custody of one parent, the court should endeavor to effect this facet of the children’s welfare by giving reasonable rights of visitation to the other parent. As such, the Superior Court of Bergen County found that when one parent willfully violates visitation of the other parent, Family Part courts must act quickly and affirmatively. Therefore, the judge ordered that despite the alleged basic violation of a criminal statute, N.J.S.A. 2C:13-4, such actions may also be a violation of court rule R. 1:10-5. The Superior Court of Bergen County found that it retained full jurisdiction to grant all relief that was available to a court of equity prior to the enactment of the criminal law statute. The court found that the issue was not removed from its jurisdiction as a result of the passage of N.J.S.A 2C:13-4, but remained within the jurisdiction of the Family Part, subject to all remedies and powers of relief available to this court.

My law firm stands prepared to help your family if you are facing a child custody dispute here in New Jersey.