NEW DECISION SETS FORTH PROCEDURE IN CHILD CUSTODY CASES

     In a new case, J.G. v. J.H.,  the Appellate Division set forth the procedure to be followed in contested custody cases, regardless whether the case is under an FM or FD docket number. 

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     In J.H. v. J.G., there was no court order, but the parties essentially shared joint legal custody of the minor child, until the mother began dating someone else, and the father alleged that the mothers  new boyfriend posted a threat to the safety of the child, and petitioned the court for sole custody.  The Court temporarily awarded the father sole custody.  When the mother challenged this, the Court entered a permanent change in the parenting schedule, making the father the parent of primary residence and significantly reducing the mother’s parenting time.  The judge made each of these decisions without investigation, and gave the parties no opportunity to resolve their differences amicably.  The judge did not allow for discovery (even though the mother’s attorney requested it), did not allow the mother’s attorney to meaningfully participate in the proceedings; nor did the judge conduct a hearing despite the the fact that the parties’ claims were completely contradictory.

The Appellate Division held the following requirements must be adhered to in ALL custody disputes, no matter the docket type:

Pre-Hearing Requirements

• Pursuant to Rules 1:40-5 and 5:8-1, parties must attend Custody and Parenting Time Mediation prior to a trial.
• If parties are unable to resolve the issues in mediation, they must submit a Custody and Parenting Time Plan to the Court, pursuant to Rule 5:8-5(a) and the case Luedtke v. Shobert (Luedtke), 342 N.J. Super. 202, 218 (App. Div. 2001).
• Where there is “conflicting information regarding which parent can serve the long term best interest of the child,” but there is no issue as to the psychological fitness of either parent, the Luedtke case requires that a Social Investigation Report should be completed.
• In FD cases, if a party requests that the matter be placed on the “complex” case management track, the court can in its discretion grant this request under Major v. Maguire, 224 N.J. 1, 24 (2016), a case on which I have written in the past.  Absent a clear reason to deny such a request, it should be granted.
• Pursuant to Rule 5:8-1, an investigative report should have been prepared by court staff before any custody determination is made.

     In all contested custody matters, a thorough plenary hearing is required where parents make materially conflicting representations of fact, pursuant to K.A.F. v. D.L.M., 437 N.J. Super. 123, 137-38 (App. Div. 2014) and many other cases.  The plenary hearing must afford both parties the opportunity to present witnesses and to cross-examine the other party’s witnesses, and parties and counsel must have a meaningful opportunity to participate.

     Judges must explicitly make findings of fact and apply those facts to the custody factors set forth in N.J.S.A. 9:2-4(c), which are:

• the parents’ ability to agree, communicate and cooperate in matters relating to the child;
• the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
• the interaction and relationship of the child with its parents and siblings;
• the history of domestic violence, if any;
• the safety of the child and the safety of either parent from physical abuse by the other parent;
• the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
• the needs of the child;
• the stability of the home environment offered;
• the quality and continuity of the child’s education;
• the fitness of the parents;
• the geographical proximity of the parents’ homes;
• the extent and quality of the time spent with the child prior to or subsequent to the separation;
• the parents’ employment responsibilities;
• the age and number of the children; and
• a parent shall not be deemed unfit unless the parents’ conduct has a substantial adverse effect on the child.

Without specifically addressing each and every one of the above factors after listening to the facts presented by both parties and assessing credibility, a court cannot make a determination as to what is in the child’s best interests.

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