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New Jersey Appellate Division Vacates Trial Court’s Orders Denying Father Additional Visitation

The 18th century educational writer, W.E. Hickson, is credited with popularizing the proverb: “’Tis a lesson you should heed: Try, try, try again. If at first you don’t succeed, Try, try, try again.”  On IMG_0187June 10, 2016 the New Jersey Appellate Division decided the case of KL-v-DL, in which after nearly three years of continuous litigation, a father succeeded in having the trial court reconsider its prior order relating to additional visitation with his daughter.  The protracted litigation began not long after the divorce complaint was filed on June 14, 2013.  The parties filed restraining orders against each other; the trial court dismissed the husband’s restraining order and granted the wife a final restraining order on October 18, 2013 relating to an incident involving the husband striking the wife in the face with a bottle.  At the time of the hearing, the husband sought visitation with the parties’ eleven year old daughter, and the court restricted his visitation to Saturdays from 1:30 p.m. to 9:30 p.m.

Soon after the court’s order, the parties filed respective motions, with the wife seeking child support and the husband seeking alternate weekend overnight visitation with the parties’ daughter. An Order was entered on February 21, 2014 which denied the husband’s request for overnight visitation but “expanded” his parenting time to an additional three hours on Wednesday afternoons, conditioned on his submission of signed and notarized letters from mental health professionals. The Court’s decision failed to explain why the Court “did not grant overnight visitation, in light of the wife’s failure to contest that the husband was a fit parent.”

The husband then filed a motion for reconsideration, and on June 10, 2014 the Court issued an order that denied his motion seeking alternate weekend overnight visitation. Soon after, the husband filed a motion for reconsideration of that June 10th order, again requesting overnight visitation.  The issue in contention was that on June 10, 2014, a Final Judgment of Divorce (FJOD) was entered, which contained agreed upon provisions for overnight visitation, but not on the days that the husband wanted.  The husband’s application was again denied. He later appealed, arguing that the trial court “improperly denied the ability of appellant to have overnight parenting time with his daughter by considering objections raised by respondent that were not a part of respondent’s motion papers and by using them as the basis of the denial of the overnight parenting time, as well as by making other mistakes of fact not supported by the record.”  The information that the husband alleged were not in the record were that the wife complained at oral argument, but not in her pleadings, that the husband had a roommate, a contention that the husband denied.  The Appellate Division ultimately concluded the trial court erred in failing to reconsider the issue of visitation.  The orders were vacated to the extent they addressed visitation and the Appellate Division directed that on remand “both sides should be given an opportunity to submit additional legally competent, relevant evidence, concerning the visitation issue. We strongly suggest that on remand the judge interview the daughter, who is now a teenager, to determine her wishes.”

It is worth noting that the husband filed his appeal with the assistance of counsel, although throughout his motion practice before the trial court, he represented himself without an attorney.   This case illustrates the need to present one’s case at trial with the proper information and in the proper light in order to ensure that the court has the necessary information to decide the case appropriately, that the court is presented with the applicable law that is appropriately applied to the facts, and that the correct and relevant facts are presented to the court in the most appropriate light in order to reduce opportunities for the court to make an error and, hopefully, to reduce the length of the litigation.  After multiple attempts by the husband at filing motions in the family court where he was not represented by counsel, years were passing without the husband being able to spend significant time with the parties’ daughter, and where there were disputed circumstances presented to the court about the parents’ fitness.    When issues like custody are at hand, it is important to make the best application as early as possible and with the correct expert opinions, facts and documentary support.  Would the Husband’s application have turned out differently had he had counsel early on?  Who can say?  However, when there is an issue as significant as custody and visitation, this might be a good time to retain an attorney who is experienced with custody disputes.  The law office of James P. Yudes, A Professional Corporation would be happy to assist you.