+973.584.6200
hdarlingesq@verizon.net

Family Court Custody Decision Reversed For Abuse Of Discretion

Family Court Custody Decision Reversed For Abuse Of Discretion

In a recent Appellate Division case, Gladish v. Servis, the court reversed the decision of the Family Court regarding the issuance of a custody and parenting time Order because it found that the lower court judge abused her discretion. The parties in this case were never married and have a daughter who was born in 2012. One month after her birth, the Plaintiff filed a Complaint seeking joint legal custody and primary physical custody of the infant. At a hearing date held in early 2013, both parties were represented by attorneys. At that time, mediation was attempted and failed and by the end of the hearing the Plaintiff’s attorney requested and was granted the right to withdraw from the case due to a breakdown in the attorney/client relationship. Before the hearing was concluded the judge inquired about the details of an interim parenting time arrangement to be utilized until the next court date. The court allowed the Defendant’s attorney to read onto the record a custody and parenting time proposed order that she had prepared in advance of the hearing with the Defendant’s proposed arrangement. The arrangement specified that both parties would share joint legal and physical custody and granted the Defendant overnight parenting time from Tuesday until Thursday during each week and on alternate weekends from Friday until Monday morning. Next, the judge engaged the parties in an effort to establish a negotiated resolution with regard to the matter and advised the Plaintiff on the “Tender Years Doctrine” which has yielded to both parents having equal access to the child. The Plaintiff continued to express concerns over aspects of the proposed parenting time arrangement, specifically the mid-week overnight visitation and the weekend overnights lasting until Monday morning. The judge dismissed these concerns and when the Plaintiff tried to express her concern about the parties’ ability to communicate with each other, the Judge stopped her and stated: “I don’t want to hear this. We’re moving forward.” Then, at the end of the hearing the judge asked the Plaintiff if she agreed with everything that had transpired to which she responded that she only agreed on a temporary basis until the next court date. Both parties signed a consent order and it was filed with the court. The Plaintiff hired a new attorney immediately following the hearing who moved to vacate the existing court order and to establish a child support order. The Defendant opposed the motion. After hearing oral argument in May of 2013 regarding the motions, the court denied the Plaintiff’s Motion to Vacate. The court did not find any basis to grant the requested relief under Rule 4:50-1 based upon the Defendant’s argument that there has not been a change in circumstances pursuant to the holding in Lepis v. Lepis, 83 N.J. 139 (1980). The court did order that the parties participate “by consent” to determine child support obligations pursuant to the New Jersey Child Support Guidelines. The Plaintiff appealed. The Appellate Court reversed and remanded the decision of the lower court. In its holding the Appellate Court noted that the “Family Court possesses broad equitable powers to accomplish substantial justice,” Finger v. Zenn, N.J. Super. 438, 446 (App. Div. 2000), but the court cannot defer to a Family Court’s decision in which the court abused its discretion. According to the Appellate Division, the Family Court judge involved herself in the parties’ negotiations and chose positions advanced by the Defendant, despite the Plaintiff’s expression of confusion and objections. In the end, the court found that the Plaintiff reluctantly accepted the custody and parenting time arrangement but only as a temporary resolution and not a permanent one – as the Plaintiff had the right and opportunity to retain new legal counsel to advise her. Therefore, the Appellate Court reversed and remanded the case back to the Family Court for further proceedings to establish a permanent custody and parenting time arrangement. Child custody cases are of the most emotional and difficult cases in all of family law. If you anticipate that you may want to petition the court for to establish custody or modify your current child custody 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, divorce, alimony, child support, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Leave a Comment