Low angle view of skyscrapers

Will Moving Change My Joint Residential Child Custody and Parenting Time Agreement?

            It depends upon how far of a move that I parent makes.  If it is only one town over, then in this New Jersey child custody lawyers opinion, the answer is no.  However, if the move is significant, then the attorneys at our law firm understand that under New Jersey law that this would not be consistent with the required factors necessary in order a child custody expert to conclude that this would be in the best interests of the children.  The following case discusses such a scenario in which one parent moved 60 miles away.

            In M.E.M. v. D.H.N., the parties were married and had three daughters born of the marriage, who were seventeen, fifteen and twelve at the time.  The parties entered a Judgment of Divorce (“JOD”) in February 2014.  The parties incorporated a marital separation agreement (“MAS”) into the JOD, which stated that the parties have joint legal custody of their children, meaning that the parents make important decisions regarding the children together.  The MSA also stated that the parties have joint residential custody, meaning the children would live with both parents equally.  The mother was given sole residential custody of the oldest daughter nine months after the JOD was entered due to changed circumstances.  After the order was entered, the father retired and moved sixty miles away from where his children and their mother lived, which made shared residential custody and parenting time extremely difficult. 

            Subsequently, the father filed a motion with the Superior Court of New Jersey Family Part seeking to terminate his child support obligation and to be the parent of primary residence, claiming the school system where he lives is better and the area is safer.  The mother filed a cross-motion with the court seeking to be the parent of primary residence, a change in the parenting time drop-off, reevaluation of child support , sale of the marital home, payment of the mother’s 2013 tax refund shares, and sanctions against the father for violation of court orders relating to marital assets.  On July 10, 2015, the trial judge denied most of the parties’ requested relief by court order pending a plenary hearing, which occurs when an issue of material fact exists and the parties’ testimony is necessary to resolve the issue.  The judge also appointed a Guardian Ad Litem (“GAL”), a person appointed by the court to evaluate solutions that are in the best interest of the child or children, to make a recommendation concerning residential custody.  Furthermore, the judge ordered that the father pay the mother her portion of the 2013 tax refund shares and the sale of the marital home, which were $1,265 and $7,170.27, respectively.  The father was also ordered to pay attorney’s fees in the amount of $1,000 due to his failure to comply with the marital asset court orders.  On July 23, 2015, the judge ordered that the father pay the GAL fees that remained in the amount of $870.

            The parties both testified at the plenary hearing and the GAL report was admitted into evidence.  The GAL recommended in the report that the mother receive primary residential custody.  On August 19, 2015, the trial court judge awarded primary residential custody of the parties’ daughters to the mother because the judge found it to be in the daughters’ best interest to remain in the school and area where they had always lived.  The judge recognized that the parties’ relationship was contentious and felt that separating the three children would do them more harm than good.  The judge did not find that the school system near the father’s new home was better than the school system that the daughters attended.  The judge ordered that the father would be the parent of alternate residence and scheduled the father’s parenting time to be every other weekend and one day after school during the week.  Further, the judge ordered that the amount of the child support obligation be recalculated.

            On September 8, 2015, the judge ordered that the father’s child support obligation be increased from $200 to $214 based on the Child Support Guidelines and the fact that the mother now had primary residential custody.  The judge found the father’s argument that the mother’s conduct forced him to retire was not good cause to use the father’s $54,161.04 per year income when calculating the amount of child support.  The judge reasoned that the father’s retirement was voluntary; therefore, the judge assigned the father’s salary at $83,751.19, which was the father’s last salary amount.  The father then appealed the judge’s decision.

            On appeal, the father claims that the trial judge’s order was contrary to the parties’ MSA.  The New Jersey Appellate Division disagreed with the father and found the trial judge’s decision to be correct and appropriate.  The Appellate Division noted that it must rely on the trial judge’s findings when they are supported be adequate and credible evidence, especially since the court has special knowledge in family matters.  The Appellate Division also noted that it will not disturb the lower court’s decision unless there was an abuse of discretion, which occurs when the lower court’s decision departed from established legal principles.  Additionally, the Appellate Division stated that the primary focus of the court when dealing with custody matters is the child’s best interest, which means that a judge can appoint a GAL to further that interest.  The Appellate Division further indicated that the lower court should not automatically follow the recommendation of the GAL, but merely use the GAL report as advisory. 

            The Appellate Division agreed with the lower court and affirmed its decision in its entirety.  The court found that the lower court did not abuse its discretion by assigning a GAL to evaluate the children’s best interests or requiring the father to pay the remaining $870 in GAL fees.  Furthermore, the Appellate Division found that the lower court did not abuse its discretion by awarding the mother primary residential custody or by recalculating child support.  The Appellate Division found that the lower court’s decision was based on reliable and credible evidence, and that the trial judge used the GAL report as advisory.  The Appellate Division also reasoned that awarding attorney’s fees is within the trial judge’s authority even though the parties agreed to pay their own legal fees in the MSA.  Lastly, the Appellate Division found that the mother was entitled to her shares of the 2013 income tax refund and that trial judge did not abuse her discretion by assigning the father a higher income when calculating child support.  The court reasoned that the father voluntarily retired regardless of the fact he still needed to support his three daughters. 

            The Appellate Division ultimately affirmed the lower court’s decision and held that the trial judge did not abuse her discretion by awarding the mother primary residential custody, recalculating child support, assigned a GAL, awarding the mother her share of the income tax refund, or awarding attorney’s fees.