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

May The Family Court In New Jersey Have A Child Custody Hearing Without Giving Me Notice?

Without Giving Me Notice?

No, provided it is not a true emergency.  It is essential that you or your lawyer, pursuant with New Jersey’s Rules of Court receive notice of any hearing regarding custody of your child. 

            In Mullen v. Ientile, mother Nicole Ientile appealed from two orders entered by the Superior Court of New Jersey, Family Part of Ocean County on March 11, 2015 and April 15, 2015 respectively. These orders related to the custody of her minor daughter. Upon review, the New Jersey Appellate Division agreed with Nicole that there were procedural flaws in the orders, and therefore remanded the matter back to the Family Part for further proceedings.

            Nicole Ientile and Steven Mullen never married, but had a daughter together who was born in 2008. The parents later separated in the fall of 2010. Right after the separation, Nicole was the child’s main caretaker, but in December 2010, the Family Part of Ocean County issued an order that granted both parents joint legal custody, and designated Nicole as the parent of primary residence.

            Several disputes arose between the parents after that, relating to issues of parenting time, and the respective fitness of each parent to take care of the child. In 2013, an expert was appointed by the court to conduct a custody assessment. A copy of this assessment, was confidentially given to the parents. The parents then entered into a consent order in August of 2014, which transferred primary residential custody to Steven, with Nicole retaining parenting time based on a specific schedule. Additionally, the parents agreed that a psychologist would serve as the daughter’s private therapist.

            In March of 2015, the daughter, who was six years old at the time, injured her foot trying to do a cartwheel, while visiting Nicole. Even though Nicole did not believe that the injury was serious enough to warrant medical attention, she still informed Steven of the injury when brought their daughter back to him after visitation. Two days after that, Steven retained an attorney to file an emergency Order to Show Cause with the Family Part, and alleged that Nicole had medically neglected their daughter’s foot injury, and raised concerns about her psychological stability. He wanted to modify the terms of custody, on an emergency basis, to order Nicole to partake in a psychological evaluation, and further require her parenting time with the child to be supervised.

            On March 11, 2015, a Family Part judge was presented with the emergent Order to Show Cause. Steven’s attorney at the time appeared and claimed that she unsuccessfully tried to get into contact with Nicole through her cell phone and place of employment regarding the hearing for the Order to Show Cause. The Family Part judge allowed Steven’s lawyer to speak on the record, even though Nicole, the defendant, was absent. During this time, the attorney summarized her client’s allegations of Nicole’s potential unfitness and medical neglect.

            The judge then had the court staff get Nicole on the phone. Nicole answered and was sworn in by the Family Part judge. The court also accepted a copy of a letter written by the child’s therapist, in which she stated that she had concerns about Nicole’s judgment as a parent and psychological stability. Nicole, over the phone, informed the Family Part that she had hired an attorney, who had advised her to request an adjournment. However, the Family Part refused to terminate the hearing, but did state that her attorney would be permitted to participate on the return date of the Order to Show Cause. Further, the judge allowed Nicole to orally respond to Steven’s allegation, without the benefit of representation.

            When the March 11 hearing ended, the Family Part found that the child was in danger of immediate and irreparable harm while in the presence and custody of her mother. Therefore, the Family Part ordered that Nicole’s parenting time must be supervised until the return date.  The return date of the Order to Show Cause was on April 15, 2015, in front of the same Family Part judge. Both parents appeared that day with their respective lawyers. The Family Part judge ordered that the supervised parenting time ordered at the first March 11 hearing should be continued, and Nicole should undergo a psychological evaluation. Even though the Family Part judge ordered this after hearing oral arguments from both parents, and evidentiary hearing was never conducted. In its analysis, the Family Part stated that it relied on the evaluation of custody conducted in January 2014, in addition to the more recent letter from the daughter’s therapists that was introduced into evidence on March 11. Nicole appealed the decision.

            In her appeal, Nicole argued that the Family Part committed error at the March 11 hearing by permitting Steven’s attorney to make an ex parte presentation without first getting Nicole on the phone, and by moving forward with the hearing when Nicole’s attorney was unavailable. She further argued that the Family Par should not have used the hearsay statements of the custody evaluator that did not testify, and the therapists whose letter was more than a year old and not relevant. She also argued that New Jersey Rule of Evidence 703 barred the reliance on the net opinions of the experts. Finally, Nicole argued that the terms of parenting time and custody should not have been changed without first holding a plenary hearing and hearing testimony.

            The New Jersey Appellate Division agreed with Nicole that the Family Part should not have let Steven’s lawyer to allege wrongful conduct on the record in an ex parte manner at the March 11 proceeding, without first trying to call Nicole and permitting her to participate simultaneously. Furthermore, even though the Order to Show Cause was submitted as an emergent issue relating to the welfare of the minor child, it would have been better if the court had halted the proceeding for a brief period, so that Nicole’s attorney could have a reasonable opportunity to take part in the telephone call with the court. Moreover, there was no evidence that the court staff tried to call the office of Nicole’s attorney directly, after being informed that he had been retained.

            The New Jersey Appellate Division explained that this procedure placed Nicole at a considerable disadvantage. The problem was that Nicole was not present from the first part of the proceeding, and her attorney was not present for the whole thing. The New Jersey Appellate Division also agreed that this deficiency was not cured by the April 15 proceeding, partly because the reasoning of the court on that day seemed to have been the same as the reasoning on March 11, and also incorporated the same preliminary findings as the March 11 proceeding. Furthermore, the appellate panel explained that Family Part’s reliance on the opinions of the two experts, which they labeled as hearsay, had the result of continued restrictions on Nicole’s parenting time without a strong evidentiary basis for ordering that relief.

            Usually, a plenary hearing should be held before the Family Part enters an order that affects a child’s custody. Even though this preference for a plenary hearing can be relaxed in emergency situations, in this case, the New Jersey Appellate Division found that in this case, the court should have conducted a plenary hearing on the return date, and not have just decided the issue solely on the written submissions of the parents, the hearsay of the experts, and the non-evidential oral argument of counsel.  Therefore, due to the specific circumstances of the case, the New Jersey Appellate Division held that the issue should be remanded back to the Family Part.