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

May A Parent Modify A Parenting Time Schedule In Order To See Their Child On All Holidays?

When parents agree to a parenting time schedule in New Jersey, it is binding. However, experienced child custody lawyers understand that it is possible to modify a parenting time schedule if it is in the child’s best interest to do so. What happens, though, if a parent originally agrees to a parenting time schedule, and then wants to modify it for his or her own personal interests? For instance, what if a parent wants to modify an existing parenting time schedule in order to see his or her child on all major holidays because the other parent decides not to celebrate those holidays? That was the issue that was addressed in the recent case of Anello v. Fiorina.

In the case the parties began dating in 2006, but never married. However, their relationship quickly came to a tumultuous end before their child was born in 2008. As a result, the parents hired family law attorneys and then agreed to share joint legal custody of the child, with the mother as the primary residential parent. Additionally, the parties established a parenting time schedule and the father agreed to pay child support pursuant to New Jersey’s child support guidelines. 

In October 2009, the mother filed a motion for an increase in child support and to compel the father to dress and return the child to her in appropriate clothing. As a response, the father filed a cross-motion for joint residential and legal custody, or alternatively, an increase in parenting time, including all holidays and the child’s birthday. The father argued that he should be entitled to have his son on all holidays and his birthday because the mother was a Jehovah’s Witness who did not celebrate holidays like he did. Yet of course, the mother opposed the increase in parenting time. She stated that it was already agreed upon to share the holidays and that she agreed to let her son spend Halloween, Thanksgiving, Christmas Eve and New Year’s Eve with his father.

Almost a year later, the trial court rejected the father’s motion for either joint legal and residential custody or an increase in parenting time. Additionally, the trial court decreased the father’s parenting time and denied his request for all holidays and the child’s birthday. The trial court judge focused on the child’s best interests. He acknowledged that although the parties were unable to cooperate or communicate with one another to resolve many issues, they had agreed in a consent order to a parenting schedule already.

A few months later, the court ordered a custody and psychological evaluation to take place. After examining both parties, the psychologist concluded that the parties “appeared to be unable to communicate effectively on almost any issue related to the child’s well being.” The psychologist also concluded that there was no support for a substantial increase in the father’s parenting time, stating that “an increase might be even disruptive to the child who is accustomed to the current parenting time schedule.”

Thereafter, the mother filed another motion to hold the father in violation of her rights for interfering with her parenting time. She sought an automatic forfeiture of the father’s rights for violating her parenting time. Additionally, because the father refused to return the child to her during her scheduled holiday parenting time, she also sought parenting time on all holidays. The mother certified that the father continued to infringe upon her parenting time and that he refused to follow the established parenting time schedule that he had agreed to in the consent order. Furthermore, the mother noted that although she did not celebrate certain holidays due to being a Jehovah’s Witness, she nonetheless took off from work on holidays to spend time with her child.

After considering the testimony of both parties again, the trial court established a detailed holiday parenting time schedule. The court granted the father every Memorial Day weekend, Halloween, Veteran’s Day, Christmas Eve to Christmas Morning, Father’s Day and the father’s birthday. In addition, the court granted the mother every Labor Day weekend, Christmas Day, Mother’s day, and her birthday. The court ordered that the parties split July 4th, President’s Day, Easter, Columbus Day, Thanksgiving Day, New Year’s Eve, New Year’s Day and the child’s birthday. But of course, the father appealed.

On appeal, the father argued that the trial court erred in not granting his motion to increase his parenting time to include all holidays. However, the New Jersey Appellate Division affirmed the findings of the lower court. The Appellate Division stressed the importance of keeping in mind the child’s best interests. Accordingly, the Appellate Division believed that it would only be in the child’s best interest to split his time during the holidays between his parents.

Ultimately, the main take away from the case is that a court is typically hesitant to modify an existing parenting time schedule in order to benefit one parent primarily. That is because the court will always focus on the best interests of the child.

If you or a loved one is facing a similar issue, please do not hesitate to contact my office today.