Mother Wins Custody Appeal After Husband Violates Order
- December 31, 2014
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In the recent Appellate Division case, Luyster v. Colucci, the Plaintiff, Jennifer Luyster, appealed from a 2013 Court Order denying her Motion to Enforce Litigant’s Rights against the Defendant, James Colucci, to enforce a court ordered parenting time schedule. The Appellate Division reversed and remanded the decision of the lower court back for a hearing on the Motion. The parties in this case were married in 1997 and two (2) children were born of the marriage in 2000 and 2002 respectively. In 2003, the parties obtained a final divorce judgment which incorporated a Consent Order that defined custody and parenting time. The parties were to share joint custody of the children with the children living with the Plaintiff as the parent of primary residence. Further, the agreement specified that the Defendant was to have the children for two (2) weeks each summer. In 2013, the Plaintiff filed a Motion with the court requesting that it find that the Defendant was in violation of litigant’s rights for interfering with the parenting time schedule because he retained the children for longer than his agreed-upon summer parenting time. The trial court issued an Order in September 2013 denying the Plaintiff’s Motion as moot because the summer was over and therefore the issue of summer parenting time was no longer resolvable. The Plaintiff appealed from this decision arguing that the court erred by not making a determination as to whether or not the Defendant’s conduct violated litigant’s rights and the parenting time schedule. The Appellate Division held that the trial court erred in deciding that the Motion to enforce litigant’s rights was moot because “summer vacations [were] over.” The Appellate Court found that in addition to a Motion to enforce litigant’s rights under N.J. Court Rule 1:10-3, additional remedies are available for violations of custody and parenting time Orders, including compensatory time with the children, economic sanctions, court-ordered counseling, and modification of the custodial arrangement pursuant to N.J. Court Rule 5:3-7(a). Ultimately, the fact that the summer was over when the trial court heard the Plaintiff’s Motion did not prevent the court from addressing and remedying any violation that may have occured. Pasqua v. Council, 186 N.J. 127, 133 (2006); P.T. v. M.S., 325 N.J. Super. 193, 208 (App. Div. 1999). The Appellate Division agreed with the Plaintiff’s argument on appeal and reversed and remanded the decision of the Family Court for a hearing on the Plaintiff’s Motion to enforce litigant’s rights. Child custody and parenting time 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 a modification of 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, child support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com.This blog is for informational purposes and in no way is intended to replace the advice of an attorney.