Split Days Are A Thing

I showed up to the play date with one kid.  My friend was shocked.  Where was my other kid? I guess the concept of having a split day isn’t something people are too familiar with.  Many parents take one kid out for a special activity.  Many kids go out with their friends or family without necessarily taking their sibling along.  But once you start breaking down their schedules into parenting time, people tend to be far more hungry for that time. 

Early on in the divorce process I worried about losing time with my kids.  I worried about missing out on huge memories and all of their little milestones.  I worried about all of it.  As the kids got older though, I noticed that there were a lot of things we were all missing out on.  A little one on one time started to become something to look forward to.   

Our kids are their own people.  They have their own hobbies, interests, all of it.  And they have an amazing ability to interrupt each other and a strong desire to steer conversations and play in their own direction.  It became apparent that they needed one on one time. 

The split day was born.  It was such a raging success from the very first one that we knew we had to work this into our parenting schedule.  It made it so much more clear too that this wasn’t about my days or about my exes days.  All of this is about the kids days.   

Birthday parties are much easier to navigate without an extra sibling.  Bringing a 4 year old on a 4 hour hike is surprisingly doable when it’s one 4 year old instead of 2.  A trip to the museum became a truly interactive learning event rather than a push-me pull-me down a spiral of exhaustion.  The kids missed each other and were happy to be reunited at the end of the day.  They were eager to share their experiences.  They were thrilled to have had one of us to themselves.  So yeah, split days are a thing.  And we like them. 

S.B. v. K.C.: Custody Arrangements that Give Rise to Continuing Risks for Domestic Violence

On October 12, 2018, the Appellate Division handed down an unpublished decision in S.B. v. K.C., a case in which Essex County Superior Court dismissed an application for a domestic violence temporary restraining order and denied a final restraining order. 

Plaintiff and Defendant were never married but had one child together, born in August 2007.  The parties lived together for a few months following their child’s birth, until Defendant became incarcerated. 

Plaintiff filed her first domestic violence complaint on June 18, 2012.  She alleged that Defendant had hit her during their child’s preschool graduation and threatened to kill her, and also kicked Plaintiff’s car while she was sitting in it.  Plaintiff also laid out a history of previously unreported domestic violence incidents spanning as early as when their child was 3 weeks old.  A trial court judge granted Plaintiff’s request for a temporary restraining order (TRO) pursuant to the Prevention of Domestic Violence Act (PDVA)(N.J.S.A. 2C:25-17 to -35). 

Defendant was not served with the TRO until he appeared for a visitation hearing before a second trial court judge nearly 5 years later, on February 17, 2017.  At that time, the second trial court judge continued the restraints from the original TRO and scheduled a trial date for a Final Restraining Order (FRO) hearing. 

On March 2, 2017, Plaintiff amended her complaint to add more incidents that had occurred since the entry of the initial TRO.  The second trial judge granted Plaintiff’s amended TRO and scheduled an FRO hearing for March 16, 2017 before a third trial judge. 

A trial court must analyze a case brought under the PDVA by applying the two-prong test in Silver v. Silver, 387 N.J. Super 112, 126 (App. Div. 2006).  The first prong requires the court to determine whether or not a predicate act (as defined by the PDVA) was committed, and the second prong requires the court to determine whether a final restraining order is necessary to prevent the defendant from causing harm to the plaintiff in the future. 

At the March 16, 2017 hearing, Plaintiff appeared with counsel, while Defendant failed to appear at all.  Plaintiff gave testimony.  The court issued an FRO by default on the grounds that Defendant had committed the predicate acts of assault and harassment and that Plaintiff was afraid of Defendant. 

However, the next day (March 17, 2017) the Defendant appeared in court and filed a motion for reconsideration before the second trial judge, claiming that he (the Defendant) had made a mistake with respect to the FRO hearing date.  When the second judge heard the motion for reconsideration, both parties appeared (Plaintiff had counsel) and both parties testified.  Neither presented witnesses or documentary evidence.  The judge ultimately found that Plaintiff failed to corroborate most of the allegations made in her amended TRO but that she did prove that Defendant committed three predicate acts on two separate occasions.  Even though the judge recognized that Defendant committed predicate acts, the trial judge commented that the incidents were three years apart, and he saw no immediate danger to Plaintiff and therefore, there was no need to enter an FRO to prevent future harm. 

Plaintiff appealed.  Defendant failed to file any responsive pleadings.  The Appellate Division found that the trial court had “failed to give sufficient measured consideration to the ongoing visitation issues concerning [the parties’ child] which will continue to bring the parties into contact and almost inevitably be a source of conflict.” The Appellate Division noted that Defendant’s commission of two separate predicate acts were likely to be repeated in the future because of the ongoing issues, and that the trial judge was mistaken in finding that Plaintiff failed to establish the second prong of the Silver analysis.  The Appellate Division reversed the trial judge’s decision, remanded the matter back to the trial court, and directed the trial court to enter an FRO, including parenting time provisions if necessary. 

W.A.D. v. R.M.C.: Proof that One Parent’s Bad Behavior Will Not Be Rewarded by the Courts

On October 5, 2018, the Appellate Division handed down a decision in W.A.D. v. R.M.C., a case that was appealed from Essex County Superior Court, Family Division. 

Plaintiff and Defendant met in 2009 and shortly thereafter began an intimate relationship.  By autumn of 2009, Defendant moved into Plaintiff’s single-family home in West Orange.  In 2011, the parties’ relationship deteriorated because Defendant wanted to have children, but Plaintiff did not.  Defendant moved out of Plaintiff’s home, but the parties remained in contact.  Defendant became a licensed foster parent during that time.   

On December 3, 2011, a child (G.M.) was born, and the Division of Child Protection and Permanency (DCP&P) contacted Defendant and advised her that the child could be placed with her immediately.  That month, Plaintiff and Defendant picked up G.M. from the hospital together, and all three began living in Plaintiff’s home in West Orange.  The parties agreed that the child would call Plaintiff “Mamma” and Defendant “Mommy.”  Two years later, in 2013, the parties found out that G.M. had a brother who was also available for adoption.  Defendant wanted to adopt G.M.’s brother; Plaintiff did not.  The parties’ relationship once again deteriorated.  Notwithstanding the parties’ failing relationship, they both agreed that they wanted to adopt G.M.  However, given the fact they were a same-sex couple, they believed that the process would be delayed, and as such, they agreed that G.M.’s adoption would be in Defendant’s name ONLY, and that Plaintiff’s would go through the process at a later date.  Defendant formally adopted G.M. on November 11, 2013 (while still residing in Plaintiff’s home). 

In 2014, the parties ended their relationship.  In June of 2014, Defendant began dating another individual (referred to by the initials C.M.C. in court documents), then moved out of Plaintiff’s residence and moved to Union County, into the C.M.C.’s residence.  At that time, G.M. was a few months shy of his 3rd birthday. 

In June 2015, Plaintiff filed an application in Essex County Superior Court seeking joint legal and physical custody of G.M., as well as seeking to have her name placed on G.M.’s birth certificate and to have G.M.’s last name hyphenated to reflect both parents’ surnames.  The Court entered an Order scheduling a trial, temporarily granting Defendant sole legal and residential custody, appointing a Guardian ad Litem for G.M., and appointing an expert to determining whether there was a psychological bond between Plaintiff and G.M.  Plaintiff soon thereafter amended her pleadings to seek an order designating her as G.M.’s parent of primary residence (PPR). 

In July 2015 Defendant married C.M.C.  In November 2015, Plaintiff filed a complaint for adoption of G.M. in Essex County.  Coincidentally (or not) that same month, C.M.C. filed a complaint for adoption of G.M. in Union County.  C.M.C.’s complaint for adoption was ultimately dismissed and she was ordered to pay Plaintiff $26,000 in counsel fees.  The Court awarded the fees because (among other things) C.M.C. failed to advise Union County Court that the child she sought to adopt was the subject of custody litigation that had been pending in Essex County for several months. 

The parties’ trial in Essex County commenced on May 10, 2016 and concluded on September 23, 2018.  Judge Craig Harris presided over the trial and rendered an opinion on November 18, 2016.  Judge Harris’ Order set forth that Plaintiff had met the criteria in V.C. v. M.J.B. to be deemed a psychological parent to G.M.  (163 N.J.  223 (2000)).  He also found that it was in G.M.’s best interests for Plaintiff to be designated as PPR.  Plaintiff’s request to be placed on G.M.’s birth certificate, as well as her request to hyphenate G.M.’s last name to reflect both parties’ surnames were also granted. 

Defendant filed a motion for reconsideration of the court’s November 18, 2016 Order.  Her motion was denied.  Thereafter, Defendant appealed the orders on several grounds, the most important of which were the contention that the court erred in finding that Plaintiff was a psychological parent to G.M., and that the Court erred in ordering joint legal custody with Plaintiff as the PPR. 

The Appellate Court affirmed the trial judge’s findings and rulings.  The Appellate Court echoed reiterated one of the tenets from V.C., which states that “the psychological parenting doctrine is based on the ‘recognition that children have a strong interest in maintaining the ties that connect them to adults who love and provide for them.’” The Court outright rejected Defendant’s arguments that proper weight was not afforded to her status as an adoptive parent. The Court stated that once an individual is deemed to be a psychological parent to a child, they stand “in parity with the legal parent” and that the standard deciding custody and visitation issues in that regard is “best interests of the child” in accordance with N.J.S.A. 9:2-4. 

The Appellate Division also rejected the following several arguments Defendant made, which were nothing more than attacks on Plaintiff’s style of parenting (such as referring to Plaintiff as a babysitter, and a playful caretaker).  The Appellate Division instead focused on the abundance of proof in the record that Defendant was a deeply uncooperative co-parent and did things such as: 

  • Failing to provide Plaintiff with information regarding G.M.’s medical providers (on several occasions) 
  • Unilaterally removing the child from his school district 
  • Registering the child in a new school 
  • Denying Plaintiff parenting time during the holiday 
  • Refusing to allow the child to participate in activities with Plaintiff’s family 
  • Disparaging Plaintiff on social media 
  • Moving several times in a short time span (contrasted with Plaintiff remaining at the same residence for 15 years) 

The Appellate Division recounted expert witness testimony that stated that the degree of vitriol coming from Defendant was affecting G.M. and” had the potential to cause him to sustain significant and lasting harm.” 

The trial court’s admonishment of Defendant’s refusal to co-parent, as well as the Appellate Division’s affirmation of the trial court’s decision should serve as a warning to parents in ugly custody battles; acting as a child’s only parent, and making unilateral decisions with respect to the health, education and general welfare of the child, can and will (and should!) backfire in a custody trial. 

J.G. v. J.H.: A Not-So-Surprising Tale of the Court’s Apathy Towards Non-Dissolution Cases

Most attorneys who practice family law agree that the FD docket is the “Wild West” of the Court; as it is a place where things like Rules of Court, deadlines, and civil procedure are regularly ignored by litigants, court staff, adversaries, and judges.  The regularly-occurring debauchery that takes place in the FD division often goes unchecked, as the litigants tend to have less resources than the litigants moving through the FM docket, and as such, do not have the funds to attempt to take corrective actions such as filing motions for reconsideration or appeals. 

However, the Appellate Division recently reversed and remanded a trial court judge’s decision in an FD case which the judge transferred custody and set a parenting time schedule after mishandling the case in at least five major ways.  First, the Plaintiff’s attorney requested that, due to the gravity of the requested relief (a change in custody) that the matter be placed on a complex discovery schedule.  The judge rebuffed the attorney’s request by stating that “it’s an FD matter . . . . it’s not a divorce.”  The judge steadfastly held onto his completely baseless reasoning for denying discovery even when the attorney cited a Court Rule to support the request.  Second, the attorney attempted to speak on behalf of their client later in the proceedings, the judge silenced the attorney by stating “I’m asking [Plaintiff,] not you.”  Third, the judge did not allow the parties to cross-examine each other, even though they made wildly conflicting accusations about each other in their written submissions.  Fourth, the judge did not give the litigants the opportunity to call any witnesses, including Plaintiff’s mother, who had regularly provided childcare and who the parties sharply disagreed on her continued ability to do so.  Fifth, the judge failed to make fact-findings and failed to make his decision based upon the custody factors outlined in N.J.S.A. 9:2-4(c). 

The judge simply stated “here is what I am going to do…” before entering an order wherein he changed custody of the parties’ 4 year old child and set a parenting time schedule that he made up on his own.  The judge made no attempt to outline the statutory factors or explain his reasoning for the drastic change he was effectuating.  In addition to the five egregious mistakes, the Appellate Division remarked that the judge made several other mistakes, including not requiring the parties to attend mediation as per Court Rule, not requiring the parties to submit proposed parenting time plans as per Court Rule, and not holding a plenary hearing (which surely would have alleviated several of the larger issues that ultimately resulted in the judge’s inept decision.)

The Appellate Division found the trial court judge’s actions and decision to be so wrong that they reversed the judge’s order remanded the case back to the trial court with instruction to assign the case to a different judge.

¿Cuáles son los diferentes tipos de custodia?

Cuando piensas en la palabra “custodia”, muchas personas asumen que simplemente significa dónde vive un niño. La ley de Nueva Jersey establece diferentes tipos de custodia, dependiendo de la situación de la familia.

La custodia legal se refiere al derecho de cada padre a tomar decisiones importantes sobre la vida del niño, como las relacionadas con la atención médica, la educación y la educación religiosa. En muchos casos, uno de los padres tiene la custodia física primaria de un niño, o sirve como el padre de la residencia principal (PPR). En otros casos, los padres pueden haber compartido la custodia física, lo que significa que un niño pasa más o menos la misma cantidad de tiempo con cada padre. 

 No es raro que uno de los padres sea el custodio físico o el padre de un menor con residencia, mientras que el otro padre tiene derecho a pasar tiempo con el menor. Mientras que el arreglo tradicional solía ser para el padre sin custodia o no residente para ejercer visitas con el niño en fines de semana alternos y un día durante la semana, un padre sin custodia puede desear pasar más tiempo con el niño y esta es una resolución que es cada vez más común . En ese caso, las partes podrían tener lo que está más cerca de un acuerdo de custodia compartida. La custodia compartida, sin embargo, no siempre significa que el tiempo del niño se divide perfectamente entre los dos padres. Simplemente significa que los padres tienen un tiempo de crianza más cercano a un horario igualmente compartido y ambos participan activamente en las actividades regulares de un niño. 

 Los padres comúnmente comparten la custodia legal conjunta de su hijo después de la disolución de un matrimonio o relación. Beck v. Beck, 86 N.J. 480 (1981). Esto significa que los padres deben cooperar para tomar decisiones importantes en conjunto sobre su hijo. Si bien la custodia legal conjunta es una gran manera para que los padres sean padres de sus hijos de una manera positiva, también puede ser muy gravoso cuando los padres simplemente no se llevan bien. Si los padres no pueden ponerse de acuerdo sobre las decisiones más básicas sobre el niño, como a qué escuela asistirá el niño, entonces es probable que aumenten las tensiones, aumenten las disputas legales y finalmente el niño sufrirá las consecuencias. En caso de que las partes no puedan llegar a un acuerdo sobre la decisión en cuestión, las partes pueden tener que involucrar al Tribunal en la toma de decisiones. 

Los casos de custodia a menudo son complicados, largos, emocionales y estresantes. No importa cuán complejos sean los problemas en su caso, estamos aquí para ayudarlo. Los abogados de Argentino Family Law & Child Advocacy, LLC, han manejado casos que involucran todos los aspectos del divorcio, la custodia de los hijos y el derecho de familia, así como casos que involucran otros asuntos relacionados con las familias y los niños. Comuníquese con la familia experimentada de Nueva Jersey y con los abogados de menores en nuestra oficina si tiene alguna pregunta legal sobre los niños y su familia. 

What Are the Different Types of Custody? 

When you think of the word “custody,” many individuals assume that it simply means where a child lives. New Jersey law provides for different types of custody, depending on the family’s situation. Legal custody refers to the right of each parent to make important decisions about the child’s life, such as those involving medical care, education, and religious upbringing. In many cases, one parent has primary physical custody of a child, or serves as the parent of primary residence (PPR). In other cases, parents may have shared physical custody, which means that a child spends roughly the same amount of time with each parent. 

It is not uncommon for one parent to be the physical custodian or residential parent of a child, with the other parent being entitled to parenting time with the child. While the traditional arrangement used to be for the noncustodial or nonresidential parent to exercise visitation with the child on alternate weekends and one day during the week, a noncustodial parent may wish to spend more time with the child and this is a resolution which is increasingly common. In that case, the parties might have what is closer to shared custody arrangement. Shared custody, however, does not always mean that the child’s time is divided perfectly evenly between the two parents. It just means that the parents have parenting time that is closer to an equally shared schedule and both actively participate in a child’s regular activities. 

Parents commonly share joint legal custody of their child following the dissolution of a marriage or relationship. Beck v. Beck, 86 N.J. 480 (1981). This means that the parents must cooperate in order to jointly make important decisions about their child. While joint legal custody is a great way for parents to co-parent their child in a positive manner, it also can be very burdensome when parents simply don’t get along. If the parents cannot agree on the most basic of decisions about the child, such as what school the child will attend, then it is likely that tensions will rise, legal disputes will increase, and the child ultimately will suffer the consequences. In the event that the parties cannot agree on the decision at issue, the parties may have to involve the Court in their decision making. 

Custody cases are often complicated, lengthy, emotional, and stressful. No matter how complex the issues in your case may be, we are here to help. The attorneys of Argentino Family Law & Child Advocacy, LLC, have handled cases involving all aspects of divorce, child custody, and family law, as well as cases involving other matters related to families and children. Please contact the experienced New Jersey family and child lawyers at our office if you have any legal questions about children and your family.