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

What Is A Motion For Reconsideration In A Child Custody Case In N.J.?

            It is quite challenging for even the most seasoned New Jersey child custody lawyer to win on a motion for reconsideration, but not impossible. Many judges see motions for reconsideration as a chance for an unhappy party to complain and re-litigate issues that have already been decided. Additionally, many courts believe that motions for reconsideration are an unnecessary waste of the court’s time and legal fees to the client. Keeping this in mind, it is important for a motion for reconsideration to be drafted by your lawyer with the utmost care. The motion should include the specific controlling cases or legal errors that the person believes that the court has overlooked or erred. Our state has some of the most careful and dedicated judges in the country, but mistakes do happen. Even Superior Court judges are not immune from making a mistake. This is why it is so important to be represented by a competent and experienced attorney who can draft a successful motion for reconsideration in case a mistake does happen.

In Smith v. Alverio, mother Claribel Alverio appealed from an order of the Superior Court of New Jersey, Family Part of Mercer County, dated March 23, 2015, that denied reconsideration of order dated July 18, 2014 that granted Derrick Smith shared residential custody of their eleven month old daughter. After a thoughtful review, the New Jersey Appellate Division reversed the order that denied reconsideration. The appellate panel held that Court Rule 5:8-1 states that in family law disputes in which the Family Part finds that the either parenting time issues or the custody of children are a substantial or genuine issue, the court will refer the case for mediation. If the Family Part court fails to refer the issue to mediation, then the New Jersey Appellate Division is compelled to remand the issue back to the Family Part. However, if the mediation is not successful then Rule 5:8-1 allows the judge to order a best interest of the child evaluation. The New Jersey Appellate Division leaves the decision of whether such an evaluation is needed to the sound discretion of the Family Part judge. Furthermore, the parents and the judge will have to determine if expert assistance is needed. After these steps have been taken, if the issues are still contested by the parents, then the Family Part will be required to hold a plenary hearing, that includes testimony under oath and cross-examination of the witnesses. Unless there are exigent circumstances that exist, then changes in custody cannot be ordered without a full plenary hearing. Therefore, the New Jersey Appellate Division reversed the order of the Family Part of Mercer County that denied reconsideration, and remanded the issue for a new hearing.

            Claribel and Derrick appeared before the Family Part on May 27, 2014 to address Derrick’s motion for shared custody and parenting time. At first, the Family Part was not successful in resolving the issue through a counsel only conference. After hearing arguments from the lawyers, and unsworn testimony from the parents, the Family Part entered a tentative order, but gave the parents the opportunity to submit objections after the fact. On July 18 the Family Part entered an order setting child support. This order allowed for shared residential custody, and joint legal custody. Consequently, on August 21 Claribel filed a motion for reconsideration, and claimed that the Family Part court failed to make findings of fact and conclusions of law. According to Court Rule 4:49-2, a motion for reconsideration must state with specificity the basis on which it is made, including a statement of the matters or controlling decisions that the party believes the court has overlooked or as to which it has erred, and attach a copy of the judgment or order sought to be reconsidered and a copy of the court's corresponding written opinion, if any.

            The Family Part court issued a written memorandum of decision on January 29, 2015, which explained its July 18 order, before deciding on the reconsideration motion. On March 17, 2015, the reconsideration order was finally heard. Claribel had argued that the Family Part court failed to abide by Rule 5:8-1 when it referred the issue to mediation before deciding on the custody matter, and that the court should have also ordered an investigation to determine what was in in the child’s best interest. She also made note that Derrick did not take advantage of the parenting time given to him under the court’s order because he worked two jobs. In response, Derrick argued that they were given the chance to settle the custody and parenting time issues through mediation but were not successful. He further argued that there was no need for a costly investigation, because neither parent was unfit, and the Family Part’s decision was reasonable..

            The Family Part of Mercer County entered an order that denied the motion on March 23, 2015. The Family Part found that no good reason existed to reconsider its order because Claribel failed to allege that the court had based its order on a clearly incorrect reasoning, nor did she allege that the Family Part failed to consider competent probative evidence. Claribel appealed.

            On appeal, the New Jersey Appellate Division agreed with Claribel that the July 18, 2014 custody order should have been vacated because the Family Part did not comply with the court rules. Rule 5:8-1 states that in family law disputes in which the Family Part finds that the either parenting time issues or the custody of children are a substantial or genuine issue, the court will refer the case for mediation. If the Family Part court fails to refer the issue to mediation, then the New Jersey Appellate Division is compelled to remand the issue back to the Family Part. However, if the mediation is not successful then Rule 5:8-1 allows the judge to order a best interest of the child evaluation. The New Jersey Appellate Division leaves the decision of whether such an evaluation is needed to the sound discretion of the Family Part judge. Furthermore, the parents and the judge will have to determine if expert assistance is needed. After these steps have been taken, if the issues are still contested by the parents, then the Family Part will be required to hold a plenary hearing, that includes testimony under oath and cross-examination of the witnesses. Unless there exists exigent circumstances, then changes in custody cannot be ordered without a full plenary hearing. Therefore, the New Jersey Appellate Division reversed the order of the Family Part of Mercer County that denied reconsideration, and remanded the issue for a new trial.