Fiance’s Drinking Does Not Affect Father’s Parenting Time
- June 5, 2015
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In Santos v. Yanez, the Defendant appealed from a post-judgment Family Court Order that denied her Motion for Reconsideration with regard to the custody of her daughter and the Plaintiff’s parenting time. The Appellate Division affirmed the decision of the Family Court. The parties in this case were divorced in 2011. They only have one (1) child, a daughter, who was nine years old at the time of the appeal. In 2012, the parties entered into a Consent Order that directed that they share joint legal custody of their daughter but specified that the Defendant was to be the parent of primary residence. A year and a half later, the Plaintiff’s fiancé picked up the parties’ child from school because he was unable to. Upon leaving the school, the fiancé’s car lost control and struck a tree. She was charged with careless driving, driving while intoxicated, and refusal to provide a breath sample. The parties’ daughter was severely injured. A month following the accident, the Defendant filed an Order to Show Cause (OTSC) seeking temporary sole custody of the child and a drastic restriction on the Plaintiff’s parenting time. The Defendant also sought to have the Plaintiff’s fiancé barred from ever being in the presence of the child again. The Family Court denied the Defendant’s application for emergent relief but barred the Plaintiff’s fiancé from having any contact with the child. The OTSC was converted to a Motion and scheduled for a return date. The court found that the Defendant failed to establish a prima facie case that their daughter was suffering from a genuine and substantial harm from remaining in the Plaintiff’s custody as none of the injuries suffered by the child could be attributed to the Plaintiff’s conduct. The Defendant filed a Motion for Reconsideration. The court denied the Motion and the Defendant appealed. The Appellate Court affirmed the decision of the lower court finding that motion reconsideration is appropriate when a court’s previous decision was “based upon a palpably incorrect or irrational basis,” or failed to consider or appreciate “probative, competent evidence [,]” or where a “litigant wishes to bring new or additional information to the [c]ourt’s attention which it could not have provided on the first application [.]” D’Atria v. D’Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). In this case, the Appellate Court held that the record fully supported the Family Court’s decision based upon the facts presented and upon the observation “that [d]efendant’s motion [was] almost identical” to a prior motion that she submitted and therefore there was no abuse of discretion in the court denial of her request. Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div. 1996). If you believe that a post-judgment modification to your child custody or parenting time arrangement may be beneficial to you it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, child custody, parenting time, 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 if an attorney.