Best Interests, not preferences, guide custody decisions.

When trying to resolve custody and parenting time disputes in a NJ divorce, it is important to remember that the ultimate decision will be based on what is in the child’s best interests.  I often hear that one party is asking for a particular arrangement or to change an existing order because the child has expressed a desire for the a change.  This presents an awkward situation.  Under NJ law, the preferences of the child may be considered but are not determinative.  In my view, it is seldom a good idea to insert the children into the proceedings.  Doing so exposes them to the conflict and can lead to confusing and disappointing results.  Children may not fully understand how or why their stated preferences were seemingly ignored.  As the case below highlights, the preferences of the child are not enough to implement a change.

 

FAMILY LAW 20-2-2205 Brucia v. Gamble, App. Div. (per curiam) (3 pp.) On defendant’s appeal of the denial of his motion to modify the provision in the parties’ Property Settlement Agreement setting a parenting time schedule, the panel affirms, finding that, where the PSA contemplated custody once the child started school and provided a parenting time schedule that reflected the child’s school activities, defendant’s assertion that the child expressed a desire to spend more time with his father was not sufficient to make a prima facie showing of changed circumstances warranting modification of the PSA’s parenting time provision and also failed to show that the prevailing provision is not now in the child’s best interests.

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Terminal illness not basis to change child custody

In a decision that should come as a relief to those who are unfortunately suffering from a terminal illness, the court in NJ has ruled that the mere existence of the illness is not by itself a basis to change child custody.

Mother With Terminal Cancer Can Retain Child Custody, Judge Holds

In a case of first impression, a New Jersey judge has refused to strip a divorced mother of primary custody of her children even though she has terminal and inoperable breast cancer. Read More »

 

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Grandparents in NJ may have harder time obtaining visitation with grandchildren

A proposed bill in NJ is attempting to minimize the role of grandparents in the lives of children of divorce.  At a time when children need all the support available, this bill just doesn’t make sense.

 

Bill Would Erect High Hurdles to Grandparents Seeking Visitation
Legislation that would toughen New Jersey’s statutory standards for granting visitation rights to grandparents, and siblings, over parental objections is drawing closer to final passage. The legislation—approved Monday by the Assembly Judiciary Committee—would codify a decade-old state Supreme Court holding that applicants may be granted visitation only if they prove denial would harm the child.

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The debate over NJ alimony reform continues

If you have followed this blog, the Facebook page for The Durst Firm, LLC or my twitter posts from @divorcelawyernj you know by now that while I recognize some measure of reform may be necessary to the current NJ alimony statute, I strongly oppose the “reform” bill A3909.  The bill is mechanical in its approach, fails to recognize the unique circumstances of each marriage and would serve to undo agreements divorced parties may have entered into years ago.  As presently drafted, the bill is unfair and furthers the agenda of a few at the expense of many.

N.J. Alimony Reform Measure Is Panned by Family Lawyers

Lawyers come out in force at a legislative hearing to oppose a bill that would abolish permanent alimony and make other drastic changes to New Jersey law on spousal support. Read More »

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What do I need to prove in order to get a restraining order?

In order to obtain a domestic violence restraining order under NJ law, the alleged victim must show (1) that the offending party had the intent to commit the underlying act, and (2) that the issuance of a restraining order is necessary for ongoing protection.  If the court does not make these specific findings, then as the decision below holds, a restraining order should not be issued.

 

FAMILY LAW 20-2-1488 A.S. v. R.D., App. Div. (per curiam) (14 pp.) Defendant appeals from a final restraining order (FRO) under the Protection Against Domestic Violence Act obtained by defendant’s former boyfriend. The trial was conducted informally. The court concluded that defendant committed harassment based on the hundreds of text messages she sent the previous fall and two recent text messages. Defendant argues that her actions did not constitute harassment; the court failed to make essential findings that a restraining order was necessary to protect plaintiff, and the court failed to afford defendant an opportunity to cross-examine plaintiff. The appellate panel agrees and reverses. Even absent defendant’s opportunity to cross-examine plaintiff, he failed to present sufficient evidence to support entry of an FRO. The trial court failed to make a finding that defendant acted with a purpose to harass. Her two recent text messages on their face were written to keep plaintiff away. Defendant’s statement about making her presence known did not threaten violence, but apparently signaled an intent to take appropriate action against plaintiff to combat what she perceived to be tortious interference with her career. The statement that she would take pleasure in plaintiff’s misery was gratuitous, but within the scope of “domestic contretemps.” Further, the court failed to make the requisite finding that plaintiff needed the protection of a restraining order.

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