Facing the need for changes in custody agreements can be a complex and emotionally challenging experience. Whether due to unforeseen circumstances, safety concerns, or urgent life changes, understanding the legal steps involved and the factors influencing custody modifications is essential. In this comprehensive blog, we’ll delve into the key considerations, legal aspects, and proactive measures to ensure a smooth and well-informed approach when seeking alterations to custody arrangements during times of emergency.
Wait for the Right Time to File
The first tip is to wait until you have parenting time before initiating a custody change. It’s crucial to establish a solid foundation with parenting time. When I say wait until you have parenting time, I mean when you physically have the child, whether there’s a court order for the schedule or not. This will be the best time to file. Now, that doesn’t necessarily mean waiting until you have the child before planning the rest of the process; you want to be planning in advance. I recommend you maximize this time to gather evidence and vital information that will support your case for a change of custody. But, as far as when you want to move forward, you generally want to wait until you physically have custody of the child.
Next, you want to draft an emergent application step-by-step. In this post, I’ll guide you through the process of creating an emergent application for custody change. I’ll briefly describe how to craft a compelling application that includes necessary components and clear reasons for the change, supporting evidence, and compliance with legal requirements.
Legal Precedent for Emergency Custody Orders
When it comes to filing a successful emergent application, there’s a case that you’re going to need to rely on: Crowe v. De Gioia, 90 N.J. 126. That is the lead case that empowers and explains what a New Jersey court needs to find to grant an emergent application.
There are four main factors to Crowe v. De Gioia that you need to address. The first is that there is irreparable harm to the child – not to you or someone else, only to the child. It’s got to be immediate and irreparable. So for instance, if you believe the other parent is using drugs, neglecting the child, bringing unsafe individuals to the child, or practicing anything that could possibly endanger the child’s health or welfare.
Second, you need to show that you have an underlying claim that is settled, meaning you have a legal right to custody. If you’re the parent, that’s pretty well settled. If you’re a grandparent or a stepparent, it’s not so well settled. So you would need to address this point specifically so that you have what’s called standing or the right to be heard on this application.
Third, you have to claim that there’s a strong likelihood that you will be successful on the final application that you will just summarize by repeating that if there’s a reparable harm to a child, long as that is established and you believe in good faith that it will be, you can claim you will likely be successful because it’s unlikely a court would rule against the person in a situation where there could be potentially harm to a child.
And the fourth criteria is that the relative hardship to the parties is not significant, meaning the harm to the other parent is not as great as the harm to the child, or possibly to you and your child’s relationship. Basically, when you’re balancing everybody involved, the other person is not being harmed in such a way that should prevent the court from considering your application.
The Best Time to File An Emergent Application
When possible, I suggest that you file on a Thursday afternoon because there are strategic advantages. Keep in mind, I’m not suggesting you do anything inappropriate or unethical so that you have to fabricate or exaggerate anything. The premise of the advice is that you have a child, you have a true legal concern for the child’s safety, and you want the court to change custody at least temporarily to help the child. We’ll get into the advantages later on.
So, when you’re filing the emergent application, if you have a custody order, you will file a motion for modification. If you don’t have a custody order, there’s a form for this called an FD, which stands for Family Non-Dissolution claim. If you are not married, you can file a claim for custody or parenting time. Matter of fact, even if you are married, you can file the FD claim because you’re not filing for a divorce. When you complete either the FD application or the motion for modification, you want to also attach a written explanation of the four factors that I indicated before. Currently, New Jersey has electronic filing that was implemented in the family courts around the code pandemic time. It may be possible to file in person, but it’s preferred that you do it electronically. You can call the family court non-dissolution office if you don’t have a court order and ask for some guidance on how to file it. You can ask who it gets addressed to. You can also get the judge’s law clerk so you can email a copy of the application when you are ready to file it. It’d be the same process if you have a custody order and you’re filing a motion to modify.
The reason you want to file on a Thursday afternoon is tactical, I admit it. It’s not anything illegal, and the purpose is still to protect the child, but it’s tactical because the judges are required to review emerging applications on an emerging basis, meaning usually the day they get it or as quickly as they possibly can get to it. And if you have a true concern and your papers are prepared in a thorough way that does suggest and document a potential harm to a child, more often than not, courts are going to act swiftly and grant some, let’s call interim relief, which means temporary. They will not necessarily give you an order that changes custody permanently, nor are they likely to give you a scheduled trial to be heard on the issue. But if the judge believes that there’s a potential risk of harm to the child, even if it’s not that clear, in my opinion, experienced judges err on the side of caution. They will usually grant the application.
Now, back to the timing. Obviously, on Thursday afternoon, the courts are wrapping up. They have a lot to do in a little bit of time. If they get to your application, it’s either at the end of their day, or they will get to it Friday morning. And Fridays are busy days. They’re often motion days. Courts are overwhelmed, but they also are not likely to give you a hearing. So the interim relief is likely to be granted because they’re running out of time before the weekend rolls around and they need to address the applications. They might grant you relief since you have the child. It’s expedited and easy, and then you have at least three, four days where the child’s going to be in your possession, your custody.
It makes the argument more compelling when you’re arguing things like risk of harm or hardship balancing. If the child’s already there, there is no harm. You can argue consistency for the child’s benefit because he or she’s with you currently, there won’t be any shuffling them around, and it eliminates risk of harm. So again, Thursday is more of a timing issue because the courts have less time before a weekend to consider it. And when pressed for a decision, I believe they will err on the side of caution to protect the child and grant you a temporary order of changing custody.
The Importance of Professional Legal Advice
I always have to emphasize the significance of seeking professional legal advice before taking any legal action. Consulting with an attorney ensures that you have the right guidance to navigate the complexities of New Jersey family law. I do not say this because I am an attorney. When I have a legal need, I hire an attorney. I believe that these matters are incredibly difficult to handle on your own. Family law matters, divorce matters, custody matters are very sensitive and very intimate. It’s not a money judgment issue, it’s not a tenancy landlord issue. More often than not, you want to have somebody who’s independent to guide you and advise you because of the emotions and difficulty of handling on your own. When you need to quickly rush on an emergent basis with some tactical planning to change custody of a child, it’s a big step, and a lawyer can help you determine and navigate this process to make sure that you’re doing it appropriately for all parties involved.
Securing A Successful Custody Change
It’s important to learn how to navigate the system to ensure your custody change aligns with the necessary requirements and regulations in New Jersey. You can also empower your case with the right legal support and guidance, you can strengthen your case for a change of custody, increase your chance of success. As a result of your application being successful, you’ll have an effective custody change, which can have a profound positive impact on your child’s wellbeing.
Changing custody is a step towards a better future, one will hopefully improve your parent-child relationship by changing the arrangements. You can nurture a healthier, more fulfilling parent-child relationship. It will also offer great stability and support for your child, creating a nurturing environment for growth and development. And lastly, it’s an opportunity for personal growth. Embarking on a change of custody allows for personal growth and a chance to change and provide the best possible future for your child. Ultimately, that’s what every parent involved should be focusing on.