I have blogged several times before , including last week, on cases where trial courts were reversed for failing to hold plenary hearing and provide for discovery, often in FD (non-dissolution) matters. I have also discussed the fact that there is not a presumption of 50-50 custody.
Recently, there was another case which reversed a trial judge for failing to hold a hearing, but scarily, suggested that 50-50 is presumed, when that isn’t the case.
The case is S.R.K. v. F.B., an unreported (non-precedential) Appellate Division decision dated August 8, 2024. In this case, not surprisingly and FD, the court ordered alternate weekends with the 3 year old daughter and dad in Georgia. This Order was entered without the court first ordering mediation, a best interest evaluation or a plenary hearing as requested by mom. There were also allegations of domestic violence toward mom by dad. Additionally, mom asserted that dad had mental health issues, including that his military records reflected that he had PTSD, and further that here was concern that he was not complying with the recommendations/requirements that they military made. She also made allegations regarding possible criminal history, drug and alcohol use and access to a firearm.
During the litigation, mom sought an evaluation and asked the court to review dad’s military discharge papers in chambers and also have a best interest analysis conducted before supervised parenting time take place. I note that dad had little contact with the child prior to the time, though he alleged that that was due to mom, as opposed to the fact that he lived in another state.
At the first hearing, before even hearing from mom’s counsel, the trial judge stated he was:
“firmly convinced that what is in the best interest of the child is for the child to have as much time with both parents as possible. Mom has no greater rights than dad could to the child. So that’s where we start here, and I understand you have some concerns, but dad not seeing
his child all this time causes this [c]ourt grave concern.
When mom argued that precautions be taken before allowing parenting time but suggesting video conferencing, the trial judge said, “Isn’t that nice, he can FaceTime his child. How wonderful.”
At the same hearing, dad admitted to having PTSD and that he was deemed fully disabled by the military. When mom stated that she had a copy of dad’s medical records from when they lived together, the judge responded, “[i]t’s kind of sketchy. . . . They weren’t married, and she’s walking around with his medical records. . . . I mean, that is really disturbing. [H]e has rights.” It further stated
simply cohabitating with plaintiff did not “give her the right to take his medical records.” The court then directed mom to return the records and said it would not look at them because they were his records. The court then said it wanted to see the “veteran report” but ordered parenting time in teh interim.
Despite the fact that mom lived in Georgia and dad lived in Geogia, the court granted plaintiff unsupervised parenting time with the child, stating it would have to be incrementally increased until his parenting time was equalized with dad. Essentially, the court decided the case, without discovery, at an FD non-evidentiary hearing, ignoring what mom had to say and refusing to review records or hear testimony. The court also refused to order private mediation and when a “consent conference” was unsuccessful, the judge said he would “would resolve the issues “then and there.””
On appeal, the Appellate Division understandably reversed the trial court’s decision. However, in the opinion, the court noted that, “Although N.J.S.A. 9:2-4 requires family courts begin by presuming equal parenting time to both parents (citation omitted), any of the enumerated factors may affect that calculation. That’s not really what the statute says. Rather, it says that:
“The Legislature finds and declares that it is in the public policy of this State to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.
In any proceeding involving the custody of a minor child, the rights of both parents shall be equal…
This is a distinction with a difference because the statute then goes on to say that the court can award:
“a. Joint custody of a minor child to both parents, which is comprised of legal custody or physical custody which shall include: (1) provisions for residential arrangements so that a child shall reside either solely with one parent or alternatively with each parent in accordance with the needs of the parents and the child; and (2) provisions for consultation between the parents in making major decisions regarding the child’s health, education and general welfare;
b. Sole custody to one parent with appropriate parenting time for the noncustodial parent; or
c. Any other custody arrangement as the court may determine to be in the best interests of the child.
Put another way, shared parenting is aspirational but not required.
In this case, the Appellate Division noted that despite the presumption (faulty as it was stated), any credible risk of harm must by taken into consideration.
As to the issue of mediation, the Appellate Division held that the trial court erred in summarily ordering a parenting time schedule without mediation or consideration of the parties’ proposed parenting time plans as the court rules require this.
The court then noted that even though this was brought as a non-dissolution matter which can be summary in nature, discovery or a plenary hearing can be had upon application of either party. In finding error with the denial of discovery and a plenary hearing, the Appellate Division held that:
“The trial court declined defendant’s repeated applications for discovery, mediation, or a plenary hearing. The Amplification states defendant did not meet her prima facie burden to warrant mediation or a plenary hearing and cites Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). Hand, however, dealt with a motion to modify an existing court order and transfer custody from the defendant to the plaintiff where the parties had prior custody and parenting time orders in place. Id. at 103-04. In contrast, no initial custody determination was
ever made in this case and no initial parenting time was ever agreed to or ordered by the court.
The Appellate Division went on the hold that the trial judge:
“erred in making an initial award of custody and parenting time without ordering a best interest evaluation, reviewing any evidence, or taking any testimony from the parties to assess their credibility. Despite defendant’s concerns that plaintiff’s PTSD posed a risk to Amanda if he acted as her unsupervised caregiver, and plaintiff’s admission he suffered from PTSD, the family court did not assess the risk plaintiff posed to then three-year-old Amanda, if any. It declined to review the medical records, even though plaintiff agreed to produce them.
The Appellate Division also noted the error in failing to consider the geographical distance between Georgia and NJ and whether it was in a three year old’s best interests to subject her to that amount of travel every other weekend. Moreover, the App Div noted that the trial judge did not delve into any of the statutory factors to determine an arrangement that would be in Amanda’s best interest. The matter was remanded to another judge, for obvious reasons given the quotes noted above.
But the important holding is this in a nutshell:
“Concerning parenting time in particular, decisions made without evidence and without examination and cross-examination of witnesses are wholly insufficient. Id. at 373 (quoting Fusco v. Fusco, 186 N.J. Super. 321, 327 (App. Div. 1982)). Indeed, “the matter of [parenting time] is so important, especially during the formative years of a child, that if a plenary hearing will better enable a court to fashion a plan of [parenting time] more commensurate with a child’s welfare . . . it should require it.” Ibid. (third alteration in original) (footnote omitted) (quoting K.A.F. v. D.L.M., 437 N.J. Super. 123, 138 (App. Div. 2014)). We generally reverse and remand for further proceedings when the family court does otherwise and in the face of genuine, material factual disputes. K.A.F., 437 N.J. Super. at 138
So what are the takeaways. Contested custody and parenting matters require discovery and plenary hearings, even in the FD part. While easy, prairie justice is not in a child’s best interests. Moreover, 50-50 may be aspirational, but is does not trump the facts on the ground and the actual statutory factors.
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