Parenting Time Agreement Upheld On Appeal
- August 28, 2014
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n a recent NJ Appellate Division case, S.L.R. v. M.J.P., the Plaintiff-wife appealed from a 2013 Court Order that, in part, required her to honor the parenting time arrangement with her Defendant-husband regarding the parties’ two youngest children and denying her request that the court interview the two children and award the Plaintiff sole legal custody over them. The Plaintiff and Defendant were married in 1989 and three children were born of their marriage. The parties decided to divorce in 2002 and their Final Judgment of Divorce incorporated a property settlement agreement (PSA). The terms of the PSA specified that the parties would share joint legal custody of the children with the Plaintiff acting as the parent of primary custody. Further, the agreement designated that the Defendant would have parenting time with the children on alternating weekends and one overnight during the week. In 2013, the parties’ eldest daughter, Katherine, began living with the Defendant. In March of that year, the Plaintiff’s attorney sent a letter to the Defendant stating that the children have decided that they will no longer attend the Defendant’s parenting time at which time the attorney advised the Defendant to consider the letter as notice that his youngest two children, Kali and Emily, would not be going to his home in the foreseeable future. The Defendant filed a Motion seeking an Order naming him the parent of primary residence for Katherine and compelling the Plaintiff to honor their parenting time agreement with respect to the younger children. The Family Court granted the Defendant’s request to be named Katherine’s parent of primary residence, granted his request that the parenting time arrangement as it was designed in the parties’ PSA be followed, and denied the Plaintiff’s request that the youngest children be interviewed regarding the matter. The Plaintiff appealed from this decision. According to the Appellate Court, the Family Court failed to make any findings of fact to justify its conclusion, including whether a changed circumstance warranted a modification to the parenting time arrangement when it denied the Plaintiff’s request to interview the children who were seventeen and thirteen years old. R. 1:7-4(a); Rolnick v. Rolnick, 290 N.J. Super. 35, 42 (App. Div. 1996). Further, the Family Court did not acknowledge the existence of conflicting certifications, ignored the evidence the parties presented on the issue of parenting time, failed to make findings of fact, and reached its decision by shifting the burden to the Defendant to resolve the matter. In addition, the Family Court also failed to engage any meaningful review of the terms of the PSA which should have included a best interests evaluation. N.J.S.A. 9:2-4(a); Palermo v. Palermo, 164 N.J. Super. 492 (App. Div. 1978). For all of these reasons, the Appellate Division remanded the case back to the Family Court to conduct a plenary hearing to decide the disputed issues of fact. Disputes over parenting time and child custody are among the most emotional and contested issues in family law. If you are involved in a child custody or parenting time dispute or if you are battling over provisions in your property settlement agreement it is of paramount importance that you seek out the advice of an experienced attorney before proceeding. For more information about parenting time, custody & visitation, post-judgment modification, or other family law matters in New Jersey visit DarlingFirm.com.This blog is for informational purposes and in no way intended to replace the advice of an attorney.