Custody Litigation: An Overview

The Family Division of the Superior Court of New Jersey hears child custody issues under “FD” docket numbers.  Among the principal issues determined in FD litigation are legal custody, physical custody, child support, parenting time and emancipation when the child is no longer within the sphere of influence of the parents, at least to the degree that existed during the preadolescent and adolescent years. Each of these topics within the child custody field embraces a number of sub-issues.  These sub-issues run the gamut from particularly critical decisions, such as who will be deemed the parent of primary residence (PPR) and who will be deemed the parent of alternate residence (PAR), to resolution of less consequential disputes involving parenting-time pickups and dropoffs.

In an effort to assist parents in settling their child custody disputes most counties require child custody mediation before a court-trained mediator who will hopefully solve many of the parents’ issues and assuage their concerns.  Oftentimes, the parties already have a loose framework for an agreement and the assistance of court mediation may provide the impetus to bridge any remaining gaps. In the absence of custody mediation fostering an agreement, some counties then employ a more formal process called Custody Neutral Assessment (CNA). This is a more intensive custody dispute resolution mechanism. A Family Division judge, for example, when confronted with a custody dispute in the appropriate circumstance may refer the parties to CNA and defer from making a final decision until the parties have completed the CNA process.

Hearing officers are utilized to set child support obligations in accordance with the New Jersey Child Support Guidelines. This is a procedure in which the parents are ordered to appear with their most recent income tax returns and three most recent paystubs. The hearing officer will then and there calculate and enter a child support order. The New Jersey Child Support Guidelines are premised upon the combined net weekly income of the two parents as modified by certain variables such as the number of overnights with each parent, child care expenses, and payment of medical insurance premiums for the child.

Child custody mediation, CNA and the utilization of hearing officers hopefully winnow the issues that have to be decided by a New Jersey Family Division Superior Court judge.

The vast majority of child custody cases are in whole or part settled by the processes described above.  I have found that the child custody cases not destined for settlement most commonly feature one or more of the following factors: An implacable hatred between the parents (married or not) due to the nature and circumstances of their breakup and/or the unharmonious relationship that existed before the breakup; and one of the parents having a pronounced psychological quirk, very frequently a narcissistic, domineering personality. Frequently, these factors override the parents’ ability to reach a compromise concerning the child or anything else. Perhaps even subconsciously the best interest of the child (the cardinal standard by which New Jersey Superior Court judges  adjudicate child custody cases) is relegated to the background while the parental interpersonal conflicts rush to the forefront.

Certainly, however, there are many good parents who have deep, heartfelt convictions that their child’s upbringing would be better served if he or she were the “primary” parent.  Such feelings may be based upon the social history of the family in which one parent was the primary breadwinner, having spent many hours at his or her job which might have otherwise been spent with the child. Conversely, one parent may have been home all day with the child for many months, if not years, and feels the other parent is not nearly as familiar with the daily routine and details of child care so as to be able to successfully take over the custodial duties. This is not necessarily a criticism of the less involved parent; rather, it is a reflection of twenty-first century America in which many upwardly mobile young to middle-age parents spend an extraordinary number of hours in the course of their employment — sometimes to the detriment of their child. Of course, rightly or wrongly, substance abuse allegations and other indicia of parental unfitness are sometimes levied by one parent against the other.

So, what may one expect at the custody trial?  New Jersey Superior Court judges in the Family Division are beset with a multitude of duties which do not even involve “bench” time — review and preparation of motion decisions; writing findings of fact and conclusions of law for completed trials; and conducting settlement and scheduling conferences with attorneys in pending cases. The trial scheduling of Family Division cases differs from those in the Civil and Criminal Divisions in that Family Division trials are non-continuous while civil and criminal jury trials are continuous only. A child custody case may span multiple full or half trial days over a period of months whereas the criminal or civil jury trial proceeds from start to finish over consecutive days. Unlike a jury verdict, a non-jury or “bench” trial in the Family Division usually requires that the attorneys submit post-trial proposed findings of fact and conclusions of law and the judge will then render a written opinion within several weeks.

Since Family Division trial days are non-consecutive and may feature gaps of weeks between trial testimony, memories fade and detailed factual recollection of exactly what was said becomes imprecise. I prefer to rely not only upon trial notes, but also upon an audio tape of the trial testimony which can be ordered for a nominal sum from the court administration.

During the trial, the parents and any fact and expert witnesses testify on direct, cross, redirect and recross-examination. Generally, exhibits are premarked for identification and introduced into evidence at the trial. Most Family Division judges require that trial books be submitted to the court and exchanged between the attorneys several days prior to the trial. There is no trial by “surprise” in New Jersey courts. Prior to trial, each party is conversant with the proofs of the other.

Parties may engage expert witnesses. In child custody cases, these are usually psychiatrists, psychologists, therapists or counselors. The experts must prepare and submit narrative expert witness reports which are exchanged between the attorneys prior to trial. The expert witnesses testify at trial either “live” or by videotape. In South Jersey, only a small percentage of child custody cases feature expert witnesses, principally due to the cost involved. It is not uncommon for a child custody expert to require a retainer of $5,000 or more. Thereafter, the custody expert may also require a trial testimony retainer for the court appearance. Along with attorney’s fees, these financial sums are often beyond the reach of many middle-class litigants.

Sometimes, the judge will interview the child; but judges are reticent to do so if either parent, through his/her attorney, expresses an objection. The age of the child is also an important factor in determining if the child will be interviewed. Above all else, Family Division judges are acutely sensitive to the potential of psychological trauma being visited upon the child by the litigation process. The interview is before the judge only in his/her chambers. Most judges permit the attorneys to submit proposed questions.

I have yet to appear before a New Jersey Family Division judge in a child custody case who did not exert his/her best effort to be impartial and attempt to craft a decision in the best interest of the child. Nonetheless, judges are human, and neither the attorneys nor the litigants know whether a judge’s life experiences or philosophical convictions may nudge him/her in a certain direction, perhaps even unknowingly.

Appeals in child custody cases are difficult in the sense that Family Division judges are afforded wide discretion, and reversal of their decisions necessitate an abuse of discretion, significant procedural or evidentiary error, or a plain misreading of the law.

Usually, attorneys bill by the hour in family law matters. Written retainer agreements are required. The billing rate for South Jersey family law attorneys varies substantially, but frequently ranges from $250.00 to $325.00 per hour.  Disbursements, including postage, photocopying and court filing fees, are added to the hourly billing sums.

The points discussed above are simply some of the considerations parents should take into account when assessing child custody issues and how they may be resolved within the framework of the New Jersey court system.

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