Articles Posted in Parenting Time

Various blogs have been written by members of our firm about situations where a custodial parents IMG_1930-300x225wants to move with the parties’ children to a state other than New Jersey.   Can a custodial parent live wherever he/she wants within the State of New Jersey?  Can a non-custodial parent ask a New Jersey family court just to stop a custodial parent from moving with the children to another town or city within the State of New Jersey?

Certainly some parents have reached an agreement with one another that they will live within a certain proximity to one another where they feel that it is in their own best interest for their children to live in certain areas of New Jersey or for the parents to live within a certain proximity to one another in order for their custody and parenting time agreement to work out.   New Jersey has a public policy of enforcing settlement agreements where they are fair and equitable.

What if parents do not have such an agreement?  Can the non-custodial parent prevent the custodial parent from living anywhere within the state of New Jersey that the custodial parent wants to live? In 2003, the Appellate Division addressed this question in the case of Schulze v. Morris, 361 N.J. Super. 419 (2003).  In this case, the parties had both been living in Middlesex County, New Jersey, but after the custodial parent was denied tenure at her teaching position, she found another teaching job in Sussex County and wanted to move with the parties’ child to Sussex County.  The non-custodial parent filed an Order to Show Cause seeking to stop the custodial parent from moving with the parties’ child to Sussex County.   The Appellate Division concluded that a custodial parent’s request to move to a different place within the State of New Jersey is not a “removal” action pursuant to N.J.S.A. 9:2-2 for which the custodial parent has to obtain the permission of the Court.   However,  the Appellate Division recognized that a custodial parent’s move with a child can have significant impact on the relationship between the child and the non-custodial parent and that there are occasions where an intrastate relocation can constitute a substantial change in circumstance warranting a modification of the custody and parenting time arrangement.   When a noncustodial parent opposes an intrastate relocation of the child(ren) but the custodial parent on the basis that the move will be “deleterious to the relationship between the child and the non-residential custodial parent, or will be otherwise inimical to the child’s best interests”, then the Appellate Division in Schultze directed that the family court had to assess the factors in Baures v. Lewis, 167 N.J. 91 (2001), an interstate relocation case.

In enacting New Jersey statute, N.J.S.A. 9:2-2, the Legislature established a mechanism and25ebc4898eb30bc0cd7290a9cc18a32e-300x200 procedure for a divorced or unmarried parent when seeking to move with one’s children outside the state of New Jersey.  The statute provides:

“When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order. The court, upon application of any person in behalf of such minors, may require such security and issue such writs and processes as shall be deemed proper to effect the purposes of this section.”

The Courts in New Jersey have on several occasions interpreted this statute to address the standard for the family courts to apply when one parent wants to move out of New Jersey with the parties’ children, and the other parent objects to the children making such a move.   We addressed this standard in a previous blog with regard to parents having a shared 50/50 custodial arrangement based on the decision of the Appellate Division in Bisbing v. Bisbing, 445 N.J. Super. 207 (App.Div. 207), affirmed in part, modified, 230 N.J. 309  (2017).  In another blog, we addressed the standard for relocation based on the factors outlined in Baures v. Lewis, 167 N.J. 91 (2001).  In those cases,  before the children were removed from New Jersey, an application was made by the parent seeking to move.  Does that have to be the procedure?  Can the parent make that application after the move?  Is it the obligation of the objecting parent to make an application objecting to the children’s removal from New Jersey?

It is not uncommon as a family law practitioner to experience a difference in the way the family courts handle cases involving the children of divorced or divorcing spouses (where they are 772bcf531a8ff5549f90c16a75fd1d7f-1-300x200matrimonial cases bearing an “FM” docket number) in the dissolution unit, and children of non-married parents in the non-dissolution unit (those bearing a docket number starting in “FD”).  Non-dissolution cases are typically far more summary in fashion and are handled more quickly than they are in the in the cases of divorcing parents.   The good part of this is that the children’s cases may be processed more quickly and there is less uncertainty in their lives because the children are not enduring a longer, more drawn out litigation than children of divorcing parents sometimes have to survive.  In non-dissolution cases, however, because they often are so summary, the court does not have the opportunity to become as familiar with the facts and circumstances.

In the recently published Appellate Division opinion in the matter of J.G. v. J.H., A-1312-17 (App. Div. Jan. 2, 2019) expressed some disagreement over how summarily a family court judge resolved a custody dispute between unmarried parents.

John was born in 2012 to mother Jane and father Joseph.  In 2014 the parties entered into a non-dissolution order that provided for their agreement to share joint legal custody of John, with Jane having primary residential custody and Joseph having liberal visitation with him.  In 2015 the parties attempted to reconcile and vacated that order.  The reconciliation did not last.  Jane became engaged to another man and became pregnant.  Joseph filed an order to show cause accusing Jane and her fiance of drug use and asserting that she should not leave John alone with her fiance, asserting that he was a known drug user and convicted felon.  Joseph was awarded temporary sole custody of John based on the concern for violence in Jane’s home. The court directed that Jane’s visitation with John be supervised and that it occur outside her home.

For family law attorneys, it’s beginning to look a lot like Christmas . . . fights over holiday parenting time.  The holiday season is often a time of stress, and sometimes of sadness, for everyone.  ForDSC05380-200x300 separating or divorcing parents or newly divorced parents, fighting over how to divide holiday time with their children, there is additional sadness and distress.   Every year as a matrimonial attorney I see the stress on separating couples and their children as they either try to adhere to traditional holiday celebrations for the sake of their  children, or as they try to adjust with their children to the inevitable new traditions that are going to have to be made as parents separate and cannot spend the full holiday season with they traditionally would, but have to share it.  The stress can be additional as grandparents weigh in and wish to spend time with their grandchildren, and when one or both parents begin new relationships that pulls on them or whispers in their ear at holiday time as well.

How can you avoid some of the pitfalls of disputes with your “ex” that can derail the holidays with your children?  Here, are a few tips:

  1.   Consider the stress and worry that you and your ex are putting the children under when you argue about holiday parenting time.   Parents usually want Christmas to be a magical time for the children.   It is not magical when they are aware that their parents are fighting over them.  Also, children often come to feel that they are the cause or the source of what their parents are arguing over.  This can create needless feelings of guilt, worry and unhappiness that can ruin the holidays for them.

A frequent post-divorce concern or criticism often heard from the parent who has primary residential custody of child is that their former partner does not exercise their parenting time and thatvisitation-300x200 the failure of their partner to keep to the schedule has negative monetary and lifestyle implications. I have always viewed a failure to exercise parenting time as a matter that needed to be addressed economically.   Many matrimonial attorneys and judges, however, relying on a 2006 case encaptioned J.S. v. L.S, 389 N.J. Super. 200 (App.Div. 2006), have opined that the failure a parent to exercise parenting time did not give rise to a right for economic relief. Continue reading ›

When custody disputes arise, I often consider the Biblical narrative, 1 Kings 3:16-28,  which tells the story of how King Solomon resolved a custody dispute of sorts between two women who lived 296050aba1c021ff4a7e4cab0ed498d2-3-300x200 in the same home.  The women came before King Solomon, each claiming to be the mother of the same baby boy.   King Solomon called for a sword and rendered his judgment:  He would cut the baby in two so that each woman could receive half.  The first woman did not contest Solomon’s decision, arguing that if she could not have the baby, then neither woman could.  The second woman begged King Solomon to give the baby to the other woman instead of killing the baby. King Solomon declared the second woman as the infant’s true mother, reasoning that as a mother she would give up the baby if she had to in order to save his life. Continue reading ›

More and more women are choosing to exclusively breastfeed given the reports as to the superior health benefits, not just physically but psychologically, of breast feeding.  Arranging parenting file000956778186-225x300 time between divorced or separated parents of a child who is still breastfeeding poses issues not just with overnight parenting time but daytime parenting time as well. Children who are exclusively breast-fed may reject a bottle.  Nevertheless, there is an argument that the child should be given breast milk from a bottle during parenting time. After all, not only should the child receive the best nutrition, but also facilitating a relationship with the father at the earliest age possible is in the child’s best interest. Continue reading ›

On August 15, 2017, the New Jersey Appellate Division approved for publication the decision in the matter of E.S. v. H.A (A-3230-14T2 and A-3256-14T2), in which the Appellate Division addressed whether a parent may be required to admit to a crime as a condition for that parent to be able to make an application for visitation with one’s child.  The Appellate Division concluded that parents cannot be required by the state to forego their Constitutional right against self-incrimination as a condition to seek custody or visitation with their child. Continue reading ›

Earlier this month, a March, 2017 written opinion by family court judge the Honorable Russell J. Passomano, J.S.C. was approved for publication in the matter of BG-v-LH (FM-07-468-13).   In this published opinion the court addressed issues of296050aba1c021ff4a7e4cab0ed498d2-1-300x200 jurisdiction in a custody and parenting time dispute where one party had relocated with the children out of the state of New Jersey, but the parties had reached an agreement as part of their divorce that future custody disputes would be decided under New Jersey law and in New Jersey courts.  This case contains a detailed analysis that a family court undergoes to resolve jurisdiction issues and the application of the Uniform Child Custody Jurisdiction and Enforcement Act. Continue reading ›

I was at a social event recently. A woman attending that event, after learning that I was a divorce attorney, came up to me. She told me that her ex-husband had just filed court papers seeking to modify or terminate her alimony payments. With indignation in her voice she explained that “He can’t do that because I have permanent alimony!” It was obvious that this person had taken the word “permanent” literally, and believed that her alimony rights were forever immutable. She seemed genuinely shocked when I explained, without getting into the details of her case, that even “permanent” alimony may be modified or terminated upon a showing of a substantial change in circumstances. Continue reading ›