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

Must Both Parents Help Pay Towards A Child Custody Expert Even When One Parent Is Potentially Unfit?

Yes, if a judge of the Family Part of the New Jersey Superior Court orders both parents to do so.  As the child custody lawyers at our law firm understand, during the early stages of a child custody case, the attorneys for each respective parent shall either make or defend allegation such as child abuse that has not been documented.  This is when a judge of a New Jersey Family Court shall appoint a child custody expert to evaluate the situation.  This experts fees are to be paid pursuant to how the judge allocates the fees between the parents.  In the following case, the judge refused to her the mother’s argument that she should not have been responsible for 25% of the child custody expert fees.

                  In L.C. v. V.C., ex-wife L.C. appealed an order of the Superior Court of New Jersey that denied her motion to hold a sum of money in trust, that L.C. had given to her ex-husband, V.C., to pay him back for a portion of the fees he had paid to child custody experts and professionals on her behalf. She based her motion on the contention that V.C. may have been responsible for all of the expert fees, and she wanted to have the amount held in trust until the issue could be resolved in court. The New Jersey Appellate Division reviewed the record and the merits of the appeal and affirmed the decision of the Family Part to deny L.C.’s motion.

                  L.C. and V.C got divorced in 2007 after being married for eight years. They had several children together. Their dual judgment of divorce incorporated a property settlement agreement. The divorce was followed by ten year litigation battle over parenting time and custody. When the divorce was finalized, the parents agreed that L.C., the mother, would be the primary caretaker. However, because the former couple could not resolve the issue of V.C.’s parenting time, they agreed to retain the services of a parent coordinator to assist them figure out the terms and conditions of V.C.’s parenting time. The services of this parent coordinator were not successful. After that, the parent’s agreed to hire a mediator and therapists to help improve the relationship between V.C. and the older child, and help draft a parenting time schedule with the other children. Unfortunately, these services did not result in V.C.’s relationship with the children improving.

V.C. later filed a motion to get sole custody of the younger children, which was denied by the Family Part. The Family Part did, however, appoint numerous experts and professionals to help assist with establishing parenting time between V.C. and the children. The oldest child was ordered to go to counseling to help her cope with the “massive familial dysfunction caused by plaintiff’s [V.C.] actions. The Family Part further ordered L.C. to pay for twenty five percent of the expert and professional fees, and ordered V.C. to pay for seventy five percent.  V.C. payed for these costs in full, and the judge entered a judgment in his favor and against L.C. which represented the twenty five percent share of the professional and expert costs that she was obligated to pay.

Later, L.C. sold her home. At the closing, she filed an order to show cause why this judgment and two other judgments entered against her and in favor of V.C. should not be held in V.C.’s attorney’s trust account pending her application to vacate all three judgments. Besides the first judgment, two lesser judgments were also entered, representing L.C.’s share of costs for an appointed guardian ad litem and counsel fees that she was ordered to pay V.C. In, her emergency motion L.C. sought the have the three judgments set aside. In support she argued that the eldest child had always showed a “remarkable resistance” to spending parenting time with V.C. L.C. later learned that V.C. had recently been indicted for “sexually abusing” that same child, and the Division of Child Protection and Permanency had substantiated him for sexually abuse not only against the the oldest child, but also against another child of their marriage as well.

In L.C.’s motion for an order to show cause, she stated that she had the intention to file a motion to vacate the three judgments against her, according to Rule 4:50-1, as the expenses and costs associated with mending the oldest child’s relationship with her father, which included paying the experts and professionals for their costs, was caused completely by V.C.’s wrongful conduct, and so warranted that he pay for all of those expenses himself without her contribution.

L.C. argued that if V.C. were convicted of the sexual assault, and she won on her motion to vacate the judgments against her and in favor of her ex-husband, she would have immense difficulty in recovering the money she had given to V.C. to satisfy the judgments. She stated that if he was convicted, he would not pay back any money owed to her because of their tumultuous history between them, or alternatively might not be able to collect funds from him because he may convey his money to a third party.

Later, the Family Part converted the order to show cause into a motion, and also ordered that the two smaller judgments should be directly paid to V.C. out the proceeds from the sale of the house, but funds to satisfy the initial judgment for the expert and professional fees should be put into his attorney’s trust account, until further judicial order. After that, the Family Part denied L.C.’s motion and authorized the escrowed funds to be disbursed from V.C.’s attorney’s trust account, upon him providing evidence that he paid the expert and professional fees that were the subject of the judgment. The Family Part held that there was no legal reason to keep the funds from V.C. Even if V.C. were convicted and L.C. convinced a court to vacate the initial judgment, he could easily satisfy the judgment because he had numerous income sources, owned enough assets to reimburse L.C., and still continued to receive sufficient income from a trust. L.C. appealed the decision.

On appeal, L.C. argued that the Family Part committed error by releasing the funds from the trust account to V.C. The New Jersey Appellate Division noted that while she argued the the Family Part’s reasoning was flawed, she failed to specify exactly how it was flawed. Rather than arguing that her ex-husband was judgment proof, she argued that the indictment by the grand juries gave the Family Part “ample basis” to order that the funds be retained pending the resolution of the criminal cases.  However, when the appeal was heard, the second indictment had been dismissed.

The New Jersey Appellate Division explained that they give significant deference to the fact finding done by a Family Part court, because of their special jurisdiction and expertise in family matters. As such, an appellate panel will only disturb a Family Part’s findings if they are clearly unsupported by or inconsistent with the relevant, reasonably credible, and competent evidence. With that said, a Family Part’s interpretation of law and the legal consequences that flow from facts are not given any special deference.

The New Jersey Appellate Division concluded that the Family Part had not abused its discretion, when the judge refused to retain the funds in V.C.’s attorney’s trust account. Due to his financial resources, it was reasonable for the judge to conclude that it would not be likely for L.C. to suffer any potential harm. As such, the New Jersey Appellate Division affirmed the order of the Family Part.

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