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 matrimonial 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.
On the return date of the application, Jane’s attorney requested that the judge assign the matter to the “complex track” so that there would be a period of exchanging discovery pursuant to Rule 5:5-7(c). The judge refused because the matter was not non-dissolution matter, not a divorce matter. He would not allow Jane’s attorney to participate in the proceeding. The judge questioned the parties, but they contradicted one another as to the facts and could not agree on a parenting time schedule. Without making factual findings or applying the factors of the custody statute, N.J.S.A. 9:2-4, the judge imposed a custody and parenting time schedule on the parties wherein they would share joint legal custody, Joseph would have primary residential custody and Jane would have alternate weekend parenting time but could not leave John alone with her fiance. When she worried about John being uprooted, the judge simply indicated that John had already been uprooted.
The Appellate Division reversed and remanded the matter back to the family court for a plenary hearing before a different judge. The Appellate Division held that the parties should have been directed to attend custody mediation pursuant to Rule 1:40-5 and Rule 5:8-1 and they should have been required to submit a Custody and Parenting Time/Visitation Plan pursuant to N.J.S.A. 9:2-4(e) and Rule 5:8-5(a). Also, an investigative Social Investigation Report should have been ordered. Additionally, the Appellate Division noted that the court had discretion to allow discovery and stated that it was improper for the judge to have denied discovery without any explanation.
Also significant is the Appellate Division’s reminder that plenary hearings are necessary when a court is presented with conflicting factual assertions, particularly in important matters like custody and visitation, even when the custody dispute is in the non-dissolution part. The proceeding that occurred before the motion judge was not a “plenary hearing” even though the judge asked the parties some questions. The judge did not allow Jane’s attorney to participate in the proceeding. There was no cross examination. No discovery had been exchanged, nor were the parties allowed to call witnesses or hire experts. The trial judge did not make any fact findings nor apply any facts to an analysis of the factors in the custody statute, N.J.S.A. 9:2-4(c). The Appellate Division stated:
“Busy FD calendars and the summary nature of many FD applications might encourage the misperception that any dispute labeled FD rather than FM, or divorce, requires fewer judicial resources. Thoughtful consideration of the importance to any child of custody and parenting time decisions, however, dictates the necessity of looking past the docket designation to the nature of the dispute.”
Most importantly, the Appellate Division noted that the parties had made allegations against the other about the child’s safety that conflicted with one another. Many of Joseph’s allegations were not based on personal knowledge but on hearsay. There were not witnesses or evidence to corroborate his allegations. John had lived for his entire life primarily with Jane, not Joseph. The trial court made no mention of the child’s best interest.