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Custody Dispute Crackdown…

The Appellate Division recently handed down a clear and unambiguous message to triall courts and litigators alike regarding custody disputes and how they should be handled procedurally, regardless of whether the case is pre- or post-judgment.  The case, entitled D.A. v. R.C., involved the biological parents of a fourteen (14) year old boy each seeking to be designated as the parent of primary residence approximately ten (10) years after entering into a consent order resolving all issues of custody between them.  Ultimately, the Appellate Division ordered the parties to be referred to mediation with the trial court to remain actively involved with that process to ensure that progress is being made or to take back jurisdiction if progress is not being made.  If jurisdiction is to ultimately be taken back, the trial court was instructed to conduct a plenary hearing on the matter.  Lastly, the trial court was ordered to either interview the child or place specific reasons on the record as to why the trial court refused to interview the child.Lucas e mamae

The Appellate Division based its decision as to the mandatory mediation pursuant to the mandates of Rule 5:8-1.  The Appellate Division based its decision as to the interview process pursuant to the mandates of Rule 5:8-6 and N.J.S.A. 9:2-4(c), which specifically require the trial court to either interview the child or place onto the record the specific reasons for the decision not to do so.  In this particular instance, the parties had diametrically opposing views of the circumstances present, which was notably referred to by the Appellate Division’s decision as being further exacerbated by the allegations continuously set forth by counsel for both parties without proper proofs being demonstrated.  Specifically, one party accused the other of utilizing corporal punishment and unjustified discipline on the child, while the other party accused the other party of exposing the child to a violent and dangerous atmosphere due to the marital discord between that party and his current spouse.  Furthermore, each party made accusations that the child did not want to spend time with the other party.IMG_1930

After several appearances before the trial court, the judge ultimately entered an order that provided for a 50/50 custody and parenting time split for the parties without placing any findings of fact or conclusions of law onto the record.  There were absolutely no specifics set forth as to how this arrangement, which the trial court seemingly pulled out of thin air based upon the record present, was in the best interests of the child.  Furthermore, this decision in no way set forth the basis for how the judge resolved those diametrically opposite positions presented by the parties, their counsel and their respective pleadings, especially since an evidentiary hearing was never held. It was quite clear from reading the Appellate Division’s decision that the procedural steps, or lack thereof, in addition to the very informal decorum of the proceedings, were woefully inadequate and therefore specific rulings were made to ensure that the matter would proceed effectively and efficiently forward in the future.

In addition to requiring the parties attend mediation, the Appellate Division added that “In order to provide a reasonable and meaningful opportunity for mediation to succeed, the trial court should confer with counsel and thereafter enter a case management order: (1) identifying the issues the mediator should address to resolve the parties’ custodial dispute; and (2) setting an initial two-month deadline to report back as required under Rule 5:8-1, with the proviso that this time period can be extended ‘on good cause shown.'”  If mediation proves unsuccessful, which the Appellate Division acknowledges is quite likely given the parties’ positions in the past, the trial courts were advised to be quick to pull back the case and begin the plenary hearing process in order to ensure an efficient resolution one way or another.  In addition to requiring a plenary hearing, the Appellate Division also suggested that the trial court strongly consider appointing a mental health professional to work with the parties and their child and/or perform a best interests/custody evaluation under the parameters of Rule 5:3-3(b).066 006

Last, but certainly not least, the Appellate Division set forth the parameters regarding the interview of the parties’ child, with a strong suggestion that the trial court take advantage of interviewing the now sixteen (16) year old child to determine his perspective would be considered as one of the factors in making the ultimate best interest decision as to custody and parenting time.  The Appellate Division makes clear that if the trial court ultimately decides not to interview the child, the trial court is required by statute to place its reasons for not interviewing the child on the record.  The Appellate Division also seemingly states that the trial court needs a better reason than it would be awkward or uncomfortable to interview the child.  Moving forward, under the mandates of this decision, it appears that custody disputes should have a clear procedural path to an ultimate determination that, as always, should be in the best interests of the child.  The attorneys at James P. Yudes, P.C., are well equipped to deal with these types of issues and are available to discuss any current custody disputes that may have come to light.