Evidentiary Hearings Are Required In Child Custody Cases If There Is A Genuine Factual Dispute
- January 27, 2014
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The New Jersey Appellate Court recently ruled that evidentiary hearings are required in child custody cases if there is a genuine factual dispute. In the matrimonial case, M.H.S. v. L.G.S., the Defendant appealed multiple orders of the Family Court that permitted unsupervised overnight visitation to the Plaintiff, her husband; transferred temporary custody of the couple’s infant to her husband; and denied her petition for a stay. In her appeal, the Defendant claimed that the aforementioned orders were issued without an evidentiary hearing to decide the Defendant’s belief that her child was at risk because her husband was addicted to internet pornography of an incestuous nature. The New Jersey Appellate Court held that the Family Court erred in failing to conduct an evidentiary hearing based upon the Defendant’s accusations and ordered changes in parenting time and custody despite the serious allegations. In its opinion, the Court reversed the lower court’s orders and remanded the case back down to the trial court to conduct an evidentiary hearing. In order to establish a need for an evidentiary hearing in a custody or parenting time dispute, a party must demonstrate that a genuine issue of material fact exists according to Segal v. Lynch and Lepis v. Lepis. A plenary hearing is required if there is evidence that demonstrates that a genuine and substantial factual dispute regarding the welfare of a child. The trial judge determines if such a hearing is necessary upon a review of the evidence presented. In this case, the Defendant submitted evidence obtained from the Plaintiff’s computer that listed a series of pornography websites that he had visited. The Defendant also submitted screenshots of these sites. The Appellate Court determined that this evidence was enough to warrant an evidentiary hearing. During or after divorces parenting time and custody battles can be extremely complicated and emotionally exhausting. Further, when emotions run high such battles can become very adversarial. If you are engaged in a custody and parenting time dispute it is imperative that you seek out the advice of an experienced attorney before proceeding. For more information about custody, visitation, parenting time, divorce, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.