Wife’s Failure to Cooperate With Parenting Time Results In Transfer Of Custody To Father
- September 16, 2014
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In the recent Appellate Division case, I.O. v. M.C., the Defendant M.C. appealed from a 2013 Family Court Order that transferred legal and residential custody of her son Mark, to his father, the Plaintiff, and temporarily restricted her parenting time to one hour of supervised parenting time a week because she failed to cooperate with prior Court Orders. The Appellate Division affirmed the decision of the Family Court. The parties in this case were never legally married. After dating the Plaintiff for a couple of years, the Defendant gave birth to Mark in 2003. The Plaintiff contends that from the moment of Mark’s birth he and the Defendant have engaged in routine disagreements about his role in Mark’s life. The Plaintiff claims that the Defendant always believed that he should not participate in Mark’s life and therefore she attempted to control every aspect of the child’s life by herself. In 2005, the Plaintiff made an application to the court to determine custody and child support because the Defendant would not allow him any parenting time. Subsequently, the parties entered into a consent order that included a parenting time schedule and an agreement to attend family counseling. The Plaintiff alleged that the Defendant disregarded the agreement soon thereafter. Due to this, the Family Court appointed Marcy Pasternak, Psy.D. to be a parenting coordinator in the case. In 2006, the Plaintiff filed a Motion to enforce the parenting time order and require the Defendant to attend parenting sessions with Dr. Pasternak. Years of unsuccessful efforts by more than one Family Court judge to maintain residential custody with the Defendant while allowing the Plaintiff to successfully co-parent ensued. The Defendant signed many Consent Orders that directed that she would cooperate in co-parenting with the Plaintiff, but she failed to follow through with anything. In 2013, based upon an application by the Plaintiff, a Family Court judge found that the Plaintiff had proved a change in circumstances that were detrimental to Mark’s best interests. The judge analyzed the applicable factors of N.J.S.A. 9:2-4 in arriving at his decision to transfer custody to the Plaintiff. The current appeal followed. On appeal, the Defendant argued that the Family Court judge erred in transferring sole custody to the Plaintiff because he based his opinion on erroneous facts that she refused to co-parent. According to the Appellate Court, a party who seeks modification of a judgment or order regarding custody or visitation “must meet the burden of showing changed circumstances and that the agreement is [no longer] in the best interests of the child.” Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div. 2003). This issue of such a modification is two-fold and sequential. Faucett v. Vasquez, 411 N.J. Super. 108, 127 (App. Div. 2009). The party who seeks modification of a custody arrangement must “first make a prima facie showing . . . that a genuine issue of fact exists bearing upon a critical question such as the best interests of the child . . . Once a prima facie showing is made, [the party] is entitled to a plenary hearing to resolve the disputed facts.” Faucett, 411 N.J. Super. at 127. The trier of fact also must consider the factors found in N.J.S.A. 9:2-4. The Appellate Court affirmed the decision of the lower court citing that the goal is to “assure [the Plaintiff] frequent and continuing contact with both parents.” N.J.S.A. 9:2-4. Nevertheless, that goal can only be achieved if both parents understand that the other has a fundamental right to the care of their child and the Defendant has consistently ignored orders of the court that allow the Plaintiff access to the parties’ child. 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 DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.