Sole Custody After Child Endangerment Allegations?
- August 18, 2014
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In the recent NJ Appellate Division case, Hernandez v. Fermin, the Plaintiff sought sole custody of the parties’ daughter alleging violations of his rights following accusations by the Defendant that he endangered their daughter’s safety. The Plaintiff appealed from a 2012 Family Court Order that upheld a previous parenting time and custody order. In this case, the Plaintiff and Defendant started dating around 2008, and although the parties never married, they had a daughter together who was born in 2009. One month after, Sara, their daughter, was born they dissolved their relationship and the Defendant assumed custody of her. In 2010, the Defendant formally filed a Complaint for custody of Sara and the Family Court granted her temporary custody and a Parenting Time Order. The court also granted the Defendant temporary legal and residential custody and assigned a parenting time schedule for the Plaintiff. Subsequently, the parties went to mediation where they agreed to joint legal custody and signed a Consent Order granting the Defendant residential custody of their daughter and continuing the existing parenting time schedule. In 2012, the Plaintiff filed another Motion with the court arguing that the Defendant engaged in multiple parenting time violations and seeking sole legal custody over Sara. The Plaintiff’s concerns were based upon the safety of Sara, who had recently suffered second or third degree burns while in the Defendant’s custody. The Plaintiff also asserted that when Sara was younger she noticed that she had an unexplained cut on her leg while in the Defendant’s care and that the Defendant had failed to care for a dental cavity that Sara had. The Family Court judge denied the Motion, holding that in order to determine the issue of sole custody of a child, he would need to hear the testimony from professionals like psychologists or other doctors regarding either parents’ fitness. The judge held that in order to modify a custody arrangement “you’ve got to prove a substantial change of circumstances. The fact that the [child] got injured is not in or itself grounds to take a child away . . .” Therefore, the Family Court found that the Plaintiff’s arguments were insufficient to warrant a change in custody. The Plaintiff then appealed from this decision. The NJ Appellate Court held that the resolution of a request to change custody requires the court to consider the custodial parent’s fitness and the presence of a changed circumstance. Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div. 1958); N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002). Following these principals, the Appellate Court found no error in the Family Court’s determinations and held that the Plaintiff’s assertions were without merit and affirmed the decision of the lower court. R. 2:11-3(e)(1)(E). 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 for a post-judgment 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, post-judgment modification, parenting time, divorce, 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.