Child Custody Modified After Parties Failed To Abide By Agreement
- August 30, 2015
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In Myers v. Myers, the Defendant appealed from the child custody and child support provisions issued in a 2013 final divorce judgment following a trial. The Appellate Division affirmed the decision of the lower court after a careful review of the issues and the record. The parties in this case participated in a three day divorce trial in 2013. The final divorce judgment incorporated a partial stipulation of settlement which was filed in 2013. This partial settlement resolved many issues between the parties but left the issue of custody of their child and child support unresolved. Prior to the trial, in 2009, the parties executed a Consent Order that addressed the custody of their son. The child resided with each party on alternating weeks and on the weeks that each parent did not have the child they exercised parenting time on Tuesday and Thursday evenings. At trial, the Defendant proposed the same parenting time arrangement as was negotiated in the Consent Order. The Plaintiff sought a different schedule and requested that she be named the parent of primary residence. Her argument was that the prior arrangement never really took effect because after one month the Defendant moved back into the house with her and her son and that she had always been the one to take care of their son. She contended that the Defendant did very little with their son except to take him to practices and games. After the trial, the Court noted that after reviewing the relevant case law, it was guided by N.J.S.A. 9:2-4 in making a custody determination. The judge found the Plaintiff’s testimony to be credible and found that the Defendant did not cooperate in the Plaintiff’s attempt to negotiate an agreed upon parenting time schedule. The judge determined that from the “defendant’s own testimony and his own demeanor” that a shared custody arrangement would not be appropriate. The judge awarded primary residential custody to the Plaintiff. The Defendant was given 104 overnights a year with his son and from this determination the court established that the Defendant’s child support obligation would be $143 a week. N.J. Court Rule 5:6A. The Defendant appealed. According to the Appellate Division, regarding custody, the statute requires that the court consider multiple factors in determining the best interests of the child. N.J.S.A. 9:2-4(c). A court is required to place on the record the factors it considers consequential in reaching a custody decision, as the judge in this case had done. Monte v. Monte, 212 N.J. Super. 557, 565, 515 A.2d 1233 (App. Div. 1986). In this case the judge expressed a concern in the lack of cooperation between the parties mostly due to the Defendant’s “problematic” behavior. The Appellate Division found that the Family Court judge clearly had the child’s best interests in mind when he made the custody decision and subsequently the child support award. Therefore, the Appellate Division affirmed the decision of the lower court. Child custody and parenting time cases are of the most emotional and difficult cases in all of family law. If you feel that it may be beneficial to you to submit an application to the court for a modification of your current child custody or parenting time arrangement it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about child custody, parenting time, child support, divorce or other family law matters in New Jersey visit the DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.