Understand the Custody Process in New Jersey
I was asked by a colleague to discuss a little bit about the prima facie showing that you need to have when entering a custody process case in New Jersey. There’re actually two. I’ll give you the standards, and I’ll try to explain a little bit of how to understand them, but unfortunately, there’s not much case law that clearly defines when you do and don’t meet these standards. A lot of discretion is left to family court judges.
In order to bring a custody or a parenting time issue by way of motion, you need to show a genuine and substantial issue. Now, that’s usually going to be the need to create an order. That’s not the same as a modification, which I’ll get to in a moment, but it’s usually when you don’t have an order in place for custody or parenting time or you need something like an appointment of an attorney or some fact-specific issue dealing with the child other than modification. Obviously, religion, medical needs, and education are always going to be material and substantial issues, but whether or not they’ve changed to permit a modification is another issue left up to the court.
Once you’ve met this standard, you’ve filed your motion for a change of custody or you’ve met the genuine and substantial to set a custody or parenting time, the court will put you through several different processes and have several different options that they may or may not engage.
- The court is required to send you into mediation. In a lot of cases, it’s not going to be helpful because, for instance, in the custody dispute when both parents want to have primary custody or more than 50% time, there’s often not a middle ground. Issues like relocation often don’t have a middle ground when they want to change custody because of it. Nonetheless, courts are required to send you to mediation. They will always do so, even when you tell them it’s not going to be fruitful.
The good thing about the mediation process is that it can often help. It’s confidential. It’s sponsored by the court so there’s no cost to the parents. Generally, attorneys do not appear or attend the mediation. As a practice, I usually try to keep myself available for counseling and questions, but we don’t actually go. This keeps the process very closed, and tight, and inexpensive as the first part of the custody process, so it’s actually a very good hearing to engage in, and I do encourage you to use it meaningfully. My caveat is that, sometimes, it’s not really going to be that helpful. There’s not much room for compromise.
- The court will or could have ordered a best interest analysis or report. Now, in different counties, they sometimes call these different things, but it’s generally going to be a best interest report. This will either be a court officer or a private agency that is charged with investigating both sides, sort of, of the story. If there’s a custody issue or a parenting problem, they will interview both parents. The will interview anybody that’s a collateral witness that the parents believe would be relevant to the custody issue like other relatives, school officials and teachers, possibly friends, but that’s not very common. The point of this investigation is to give a written report to the judge so that he or she may have a better sense of what the dispute is about, gets a better insight into what both sides feel about the dispute, as well the history that led to it, and sort of gives a report and a background for the judge to try to base or help base a custody decision upon it.Inside of this best interest investigation, there may be a request by either party or sometimes even the court to appoint a mental health expert, or a sociologist, or a counselor, or psychologist, any type of expert that may assist the court or the parties in determining the custody issue. I generally recommend that you first ask the court or your adversary for a joint expert. Reason is, first, it’s faster and it’s more economical if you’re sharing one expert, but also, if you’re unhappy with the report, you still reserve the right to get your own independent expert and second report. You’ll have the best interest analysis. You’ll have the joint expert. If neither of those are favorable, you can then get your own independent expert with the hopes it’s more favorable.Important thing to realize here, the unfortunate thing about the custody process with regard to these evaluations, are none of them are binding on the judge. The judge can accept any one or none of them based on his or her belief of what’s best for the child. You may be investing a lot of time and money into these experts, and it may not actually make much different in your case, but unfortunately, you need to have them because the court won’t have any other information to base the decision for custody or parenting time upon.
- The court may or may not have an in-camera interview with the child. That’s going to be in chambers behind closed doors. Normally, the parents and the attorneys do not appear. They want the child to be comfortable and relaxed and not feel like they’re being watched. It will generally be recorded, usually just audio. Some judges may do video but, usually, it’s audio. You will be able to get a copy of that under a protective order. Many judges will allow you to submit questions in advance that you may want to ask or you may want the judge to ask the child. In my experience, even though they ask you for these questions, they don’t usually use them. The judge will usually do the interview him or herself and ask questions more informally and more based on the judge’s past experience.I think, personally, the reason that they disregard a lot of the questions is because the questions are, at least in the cases that I’m involved, usually with two lawyers, the questions are geared towards finding or proving our side of the story, and judges are usually more in tune with trying to get to the bottom of the story and find out actually what’s going to be best for the child. A lot of times, the questions are really more favorable to one side and not really probative to the judge.The in-camera can also be asked for by either party in the motion. I usually recommend that you do so if you believe the child’s going to testify or answer questions favorably. If there is going to be an in camera review, one thing that you want to make sure about, that both parents have time with the child before the interview. Obviously, one parent’s going to have custody of the child on the day of the interview and probably transport the child there. If you can, you might want to share the ride. If not, you want to get to the interview early and spend some time with the child.
Obviously, there could be alienation attempts, there’s going to be some coaching, but even if all that doesn’t exist in your case, the simple reason that the child’s being brought by one parent is going to have an impact on the child. Children generally don’t want to testify against either of their parents, but if they’re spending the day with one, they’re going to be even more prone to feel like they need to protect that parent or not say anything bad against them, so I generally tell you to try to be involved with the child either the night before or the morning of the interview if you’re not the one actually taking him or her there.
- The court may choose to appoint either an attorney for the child or a guardian ad litem. Now, each have a different role that they serve, and so there’s a little bit of an ambiguity with what some people believe the roles of these individuals are, but I’ll put them simply as I know them to be.An attorney that’s appointed for the child is just the child’s advocate, so that attorney will argue whatever the child indicates is his or her preference, unless the child’s at such an age that he or she couldn’t possibly indicate one. They’re an advocate. They’re not there to decide what’s best for the child. They’re there just to argue for what the child would want to see accomplished, just like a lawyer for the parents would be doing.The guardian ad litem serves more as an advisory role and investigative, so depending on the reason for the appointment, will depend or determine what the actual ad litem is there to investigate or represent, but that person’s usually charged with more of an investigation towards what’s best for the child and what is needed in the family. Some people argue that the ad litem should be advocating for what the child’s preference is, but I don’t think that’s the case. That’s usually just a … and actually an old carryover from the ad litem that’s used in an adult guardianship, which is a similar type of role but, obviously, a different process. It think it lends some confusion to the different roles, but the ad litem is not to advocate for the child. The attorney that may be appointed would be.
These two are not very common unless there’s a really complex custody issue or it’s clear that the parents are acting in such a way that either can’t help resolve this issue or may be detrimental to the child as their ongoing practice, meaning if the parents communicate or act in such a way in their relationship that’s going to be harmful or impactful to the child, an ad litem or attorney may be necessary. They generally don’t want to add them in. One, it adds more complexity to the case, also adds a great deal of cost, and it makes it more difficult to resolve the issue because there’s more people involved.
- You may have a case management conference. This is a type of conference that’s held in most family law matters that are complex, meaning custody issues, parenting time, divorces, domestic violence sometimes can have it. The case management conference is more of a status conference that happens after the mediation and before a final decision would be made as just to check out where the case is, what issues have been resolved, what issues need to be resolved. If there was any discovery ordered, they would check on the status of that and then schedule what would be next in the case, like the appointment of a guardian ad litem or if mediation was completed.
- Schedule the final hearing, which is a plenary trial. Plenary trial is a complete but limited trial, so you have the full rules and procedures that apply to a trial, but it’s a lot less formal and a lot less sophisticated in the sense that you’ll still have witnesses testify, you may still have the experts testify, but you’re not likely to have the length and complexity you would in a more complicated trial like in a divorce case. It’s a short but a complete trial.Now, unfortunately, your plenary trial will usually not be completed in one day and not the same day that you start, so you should be prepared, one, for many adjournments of the plenary hearing because judges just don’t like having them to begin with, but then, once you start, you’re usually interrupted by other matters that the court needs to handle, time delays, lunch breaks. You don’t usually reconvene the very next day either because of the court schedule, once again, so you’re normally coming out several times. This is really similar to any kind of complex hearing you’re going to have in family court, but it applies just as well to custody cases also.
