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

May A Judge Prevent Me From Having My Child’s Passport?

            Yes.  In certain child custody cases here in New Jersey, the attorneys at our law firm embrace that any judge of a New Jersey Family Court shall always take the best interests of the children over a parents desire to travel with them.  Having said that, it is quite rare that a judge will interfere with a parent’s ability to travel with their child.  However, the New Jersey lawyers at our law firm who handle only family law cases have had situations wherein there is a reasonable suspicion that one parent may attempt to kidnap the child under the pretext of a vacation. 

            In Kissoondath v. Kissoondath, father Sasha Kissoondath appealed from certain provisions of a post judgment order of the Superior Court of New Jersey, Family Part of Cumberland County dated April 17, 2015. In the order, the Family Part court denied Sasha’s request to acquire the children’s passports to go on a Disney cruise to various parts of the Caribbean islands, in addition to denying his request to modify the parenting time schedule for a lack of showing a substantial change in circumstances affecting the welfare of the children. Additionally, Sasha also appealed the Family Part judge’s denial of his requested relief that he should be allowed to take care of the children when Brandy was away overnight.  The New Jersey Appellate Division affirmed the order of the Family Part, because the supporting reasons in the Judge Johnson’s order dated April 17, 2015 were consistent with the law and sufficiently supported by the factual record. In regards to the request to modify the parenting time schedule, the Family Part judge concluded that it would be unreasonably burdensome and disruptive for the kids to commute to Sasha’s house an hour away to accommodate a weekday overnight parenting time visit.

            Brandy and Sasha Kissoondath got married in 2001 and had three children together. The parties got divorced by a judgment of divorce entered on November 28, 2012. A handwritten stipulation of settlement was incorporated into the judgment of divorce that the parents mutually agreed to when their divorce trial began. An amended judgment of divorce was was entered on January 2, 2013, that incorporated the final, official typed version of the mutually agreed to settlement agreement.

            Among other things, the judgment of divorce awarded joint legal custody of the children to both parents. Brandy was designated as the parent of primary residence, and Sasha was designated as the parent of alternative residence. As amended, the judgment of divorce stated that because of the distance of the parent’s homes of about one hour’s driving time, Sasha would have parenting time on a two week rotating schedule. In the first week he would have parenting time with the children from Friday at 6:00 p.m. to Monday morning. For the second week he would have parenting time with the children beginning at 6:00 p.m. on Friday to 2:00 p.m. on Saturday. The amended judgment of divorce further provided that the parents would share summer school break equally, on an alternative one week on, one week off basis. Additionally, each parent would be allowed to take a two week vacation with the kids, but would first have to give sixty days advance notice to the other parent through email.

            In spite of their settlement agreement, the parents engaged in additional disputes about the implementation of the amended judgment of divorce. This current appeal was the latest saga in what the motion judge called the parent’s “significant”, “protracted”, “substantial”, and “acrimonious” litigation. Even the parents themselves readily agreed with this description.

            In this current appeal, Sasha sought judicial review of certain provisions form an April 17, 2015 post judgment order. This post judgment order was entered by Judge Harold U. Johnson, Jr., who was very well versed with the parents, as he had presided over their divorce action, and numerous post judgment motions. That order that Sasha sought review for was nineteen pages long and memorialized Judge Johnson’s factual findings and conclusions of law in relation to each of the combined twenty six counts of relief requested by both parents.

            Relevant to this appeal, Sasha appealed from the Family Part court’s denial of his request to get the children’s passport to take them on vacation on a Disney cruise that would sail to various parts of the Caribbean islands. Judge Johnson of the Family Part had based his decision partly on the volatile relationship between the parents, and the concern that Sasha would use the vacation trip as a pretext to run away with the children to Trinidad, where he was born, raised, and still had family, or another foreign country. Just a year before, the Family Part had denied his request to take the children on vacation to Trinidad, based upon Brandy’s concerns about the medical care available in Trinidad, in addition to the potential flight risk posed by her ex-husband. The Family Part judge stated that while he rarely denied a request to give children the enjoyment of a “Disney experience,” he, regrettably, was compelled to deny Sasha’s motion because of the specific circumstances, facts, and history that existed in the case. 

            The Family Part court had also denied Sasha’s request to modify the parenting time schedule, because the facts lacked a substantial change in circumstances that affected the children’s welfare. More specifically, the Family Part court denied his request to add to his parenting time schedule by picking up the kids each Wednesday after school and dropping them back off at school on Thursday morning. The Family Part judge concluded that it would be unreasonably burdensome and disruptive for the kids to commute to Sasha’s house an hour away to accommodate a weekday overnight parenting time visit. Still, in spite of this, the Family Part allowed Sasha to pick up his children from school at 3:00 p.m. on Fridays, as long as he had his ex-wife’s consent, and further allowed him to keep the children with him until 6:00 p.m. on the Saturdays when Brandy was scheduled for parenting time but worked until 6:00 p.m.

            Additionally, the Family Part judge also denied Sasha’s requested relief that he should be allowed to take care of the children when Brandy was away overnight. Brandy admitted that she had left the kids with boyfriend, who she lived with, when she went away for a week on a business trip. Restating a previous ruling, the Family Part of Cumberland County held that Brandy had the discretion to pick whose care she left the children in when she had to travel for work during her parenting time. Regardless, the Family Part court still ordered that Sasha should be given the choice to take the children into his care when Brandy was required to travel for business for a time period longer than five days. Sasha appealed from these three rulings. 

             The New Jersey Appellate Division started its opinion by explaining that they give significant deference to the factual findings made by a Family Part judge, and these findings are binding on appeal as long as they are supported by substantial, adequate, and credible evidence. Family Part judges have a special expertise in family law matters. The New Jersey Appellate Division does not second guess the exercise of a Family Part judge’s sound discretion, and will not change the factual findings and the legal conclusions that stem from them, unless the appellate panel is convinced that the same factual findings and legal conclusions are so clearly unsupported by or inconsistent with the relevant, competent and reasonably credible evidence that they offend the interests of justice.

            In general, when Family Part courts face disputes about parenting time and custody, the main concern is always the best interests of the children. As such, the court has to consider what will protect the happiness, safety, mental, physical and moral welfare of the children. Any judgment, regardless of if it is reached by consent or adjudication, must embody a best interest analysis. When a parent wants to modify a parenting time schedule, that parent has to meet a threshold burden of establishing the existence of changed circumstances that affect the welfare of the children.

            Sasha argued that the Family Part failed to consider the best interests of the children when it denied his request to take the children on the Disney cruise, for increased parenting time, and to take care of the children when Brandy was away overnight on business. The New Jersey Appellate Division considered Sasha’s appeal in relation to the factual record and relevant legal principles and held that they lacked merit. The appellate panel found that Judge Johnson was incredibly familiar with the parents, and the arguments they raised. As such the New Jersey Appellate Division affirmed the order of the Family Part, because the supporting reasons in the Judge Johnson’s order dated April 17, 2015 were consistent with the law and sufficiently supported by the factual record.