Typically, in order to modify support or custody/parenting time provisions in an agreement or judgment/order, the party seeking a modification must show a substantial and continuing change of circumstances. Given the goal of promoting settlements and enforcing consensual agreements, a question arises as to whether parties can waive the change of circumstances requirement.

Now, in 2007, the Appellate Division told is in the Hogoboom case that parties could not agree to confer jurisdiction on a court that it otherwise did not have. In that case, the agreed to go to arbitration and that either party could appeal the arbitration award to the Appellate Division, bypassing the trial court. The Appellate Division rejected that notion and held that the appeal first had to be addressed to the trial court.

But that doesn’t quite answer the question initially raised here as to whether parties can agree to modify the standards, and more importantly, why parties would even do that. Perhaps there is an issue that couldn’t otherwise be agreed to due to unique facts of the case. Waiving change of circumstances could be a pathway to settlement which, at least to a particular issue, is not permanent if facts change or don’t change, as the case may be, from what is then occurring.

For example, if a party loses her/his job either before or during the divorce and gets a new job that pays less, is commissioned based, etc. and there is no guarantee that the prior level of income, if not higher, may be reached. That is one reason that someone might agree to waive a change of circumstance standard. Perhaps an imputed income is used but there is a reasonable possibility that that amount will never be attained. That is another possible reason.

Yet a third is that issues regarding what the parties believe custody and parenting time will/should ultimately be are not the facts on the ground at the time of the settlement, but the parties want to give the matter some time to see if what is contemplated actually occurs. That is essentially what happened in the case of Abramsky v. Abramsky, an unreported (non-precedential) appellate decision opinion decided on August 26, 2024.

In that case, the parties were divorced in April 2022. In their Marital Settlement Agreement (“MSA”), the parties agreed to an equal time sharing arrangement for 6 months with the acknowledgement that the older two children were not seeing the father on a 50-50 basis but that they were working on reunification. The parties further agreed to use a Parent Coordinator as well as a 6 month review to determine a schedule in the children’s best interests. The parties were required to attend one mediation session and after that, either had a right to seek to:

“… modify the Custody/Parenting time schedule set forth herein without the necessity of demonstrating a substantial change in circumstances. Each party further reserves the right to obtain a best interests forensic custody evaluation at that time at his or her own cost.

When mediation was unsuccessful, Dad’s attorney sent a letter in December 2022 to mom’s counsel advising that he had retained an expert to prepare the best interest evaluation and requested mom’s cooperation with same. Mom declined to cooperate with the evaluation which lead to motion practice.

The trial judge denied dad’s motion seeking to compel cooperation with the best interests evaluation and for a plenary hearing on the issue of modification of custody and parenting time following the evaluation. Not only was the request for cooperation denied but the trial court held that the “… MSA did ‘not have any weight in overturning the caselaw which governs the [c]ourt in determining whether to entertain the parties’ application.'” The Appellate Division noted that trial judge went further explaining that:

…”parties can negotiate their alimony, they can negotiate the parameters of their child support, they can negotiate many things,” but they cannot “negotiate the standards by which a [c]ourt will act.” He held “[a] judge must consider a request for modification in accordance with the procedural framework established by the New Jersey Supreme Court in . . . . Lepis v. Lepis, 83 N.J. 139, 157-59 (1980),” which requires the party seeking modification to make a prima facie showing of a change in circumstances. The judge concluded “there is no justification on the present record to find that a change in custody at this time is in the children’s best interests.

Dad appealed and the Appellate Division reversed the part of the decision finding that the parties could not agree to waive the Lepis standard. When addressing the agreed upon procedure, the Appellate Division held that, “We see nothing unfair or unjust about those agreed upon procedures nor any reason to think they would lead to an absurd result.” Somewhat mocking mom’s argument that the provision could be abused, the Appellate Division held that:

“Focusing on the last sentence of paragraph sixteen – “Each party further reserves the right to obtain a best interests forensic custody evaluation at that time at his or her own cost” – in isolation, defendant contends the phrase “at that time” is somehow ambiguous and would enable plaintiff to “wake up after two, three or five years after entry into the MSA, invoke this contractual right, and change the custodial status quo on a dime.” Nonsense. Looking as we must at the language of paragraph sixteen and the MSA as a whole, the parties clearly agreed to a one-time waiver of the change-in-circumstances obligation, occurring only after the initial six-month review period and an unsuccessful mediation. It does not provide a carte blanche waiver to be invoked at any time on the whim of a party.

In reversing, the Appellate Division noted that the trial judge failed to appreciate the temporary nature of the parties’ initial six-month arrangement and built in review process.

On the other hand, the Appellate Division affirmed the refusal to compel mom to cooperate with the best interests evaluation because the MSA did not specifically provide that the other party had to cooperate with the evaluation. While perhaps one can argue that the MSA may have been inartfully drafted because it did not specifically require cooperation, one wonders how any expert could even perform a best interests evaluation without actually evaluating both parents, as well as the children.

In fact, both the American Psychological Association’s Guidelines for Child Custody Evaluations in Family Court Proceedings and the AFCC’s Guidelines for Parenting Plan Evaluations in Family Law Cases seem to require it. The AFCC Guidelines specifically require participation from every adult that performs a parenting role. Moreover, it is generally understood that both parties have, and sometimes even third parties (i.e. new spouses or significant others or other adults living in the home) have to cooperate with the evaluation.

So here, dad may have won the battle but lost the war because who knows if he can even find an expert do ethically do the evaluation without mom’s cooperation. Moreover, if he can, will mom be precluded from attacking the expert’s report because she refused to cooperate. It doesn’t seem fair for her to be able to attack the expert for that which could have been assessed or addressed but for her refusal to cooperate. There are a whole host of issues that this raises.

I suspect that this might not be the end of this. Stay tuned.

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