Standards for Custody Process
I was asked by a colleague to discuss a little bit about the prima facie showing that you need to have when entering a case for the custody process in New Jersey. There are 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.
Creating an Order
In order to bring a custody or a parenting time issue by way of motion, you need to show a genuine and substantial issue. You’ll usually show this issue through the creation of an order.
This is different from a modification. You’d need to create an order if you did not yet have one in place for custody or parenting time, or if you need something like an in-camera review, 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 significantly enough 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.
First, the court is required to send you into mediation. In a lot of cases, it’s not going to be helpful because in a 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, aside from the fact that it can often help, is that it’s confidential and 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, so it keeps the process very closed, and tight, and inexpensive. As the first part of the custody process, it’s actually a very good hearing to engage in, and I do encourage you to use it meaningfully. My caveat is that, for certain couples, it’s not going to be that helpful. There’s not much room for compromise.
Best Interest Report
Next, the court may have ordered what’s called a best interest report. In different counties, this report might go by another name, like a best interest analysis, but it’s generally going to be called a best interest report. This will either be a court officer or a private agency that is charged with investigating both sides of the story. If there’s a custody issue or a parenting problem, they will interview both parents. They will interview anybody that’s a collateral witness that the parents believe would be relevant to the custody issue. This can include other relatives, school officials and teachers, and occasionally friends. 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, the history that led to the dispute, and how both sides feel about the dispute. It gives a report and background for the judge help base a custody decision upon it.
Inside of this best interest investigation, there may be a request by either party or by the court to appoint a mental health expert (such as a sociologist, counselor, or psychologist) to assist in determining the custody issue. I generally recommend that you first ask the court or your adversary for a joint expert; it’s faster and it’s more economical if you’re sharing one expert, and if you’re unhappy with the report, you still reserve the right to get your own independent expert and second report. If neither the best interest analysis nor the joint expert are favorable, you can then get your own independent expert with the hope that they will make a more favorable determination.
The unfortunate thing about the custody process with regard to these evaluations is that 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. Unfortunately, you need to have them regardless because the court won’t have any other information upon which to base the decision for custody or parenting time.
In-Camera Interview-with the Child
Next, the court may or may not have what’s called 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, but usually just 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 the judge to ask the child. In my experience, the questions submitted by the parents are used very infrequently. The judge will usually do the interview him or herself and ask questions more informally and more based on his or her past experience.
I think, personally, the reason judges disregard a lot of the questions is because the questions are generally 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 what’s going to actually be best for the child.
The in-camera interview 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, you want to make sure 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 or coaching by one parent, but even if all that doesn’t exist in your case, the simple fact that the child’s being brought to the interview 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 more prone to feel like they need to protect that parent.
Before the final hearing, the court may choose to appoint either an attorney for the child or what’s called a guardian ad litem. Each have a different role that they serve.
An attorney that’s appointed for a 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 investigative and advisory role, so the judge’s reason for the appointment will determine what the actual guardian ad litem is there to investigate or represent. That person is 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. The attorney that may be appointed would be more of an advocate for what the child wants.
It’s not very common for an attorney or guardian ad litem to be appointed unless there’s a really complex custody issue or it’s clear that the parents are acting in a way that is detrimental to the child or will prevent them from resolving the custody issue. This is for several reasons. First, it adds more complexity to the case. It also adds a great deal of cost, and it makes it more difficult to resolve the issue because there are more people involved.
Case Management Conference
Next, you will sometimes have a case management conference, which is a type of conference that’s held in most family law matters that are complex, such as custody issues, parenting time, divorces, and domestic violence cases. The case management conference is more of a status conference that happens after the mediation and before a final decision would be made. Its purposed is just to check the progress of the case, including which issues have been resolved and which issues still need to be resolved. The judge would also use this time to check on the status of any discovery that had been ordered and then schedule next steps, such as the appointment of a guardian ad litem or, if mediation was completed, they might schedule what’s usually the final hearing, which is a plenary trial.
Plenary trial is a complete but limited trial. You have the full rules and procedures that apply to a trial, but it’s a lot less formal and a lot less sophisticated; you’re not likely to have the length and complexity you would in a more multifaceted trial, such as a full divorce trial. The plenary trial is a short but a complete trial.
Unfortunately, your plenary trial will usually not be completed in one day, so you should be prepared for many adjournments of the plenary hearing. You’re usually interrupted by other matters that the court needs to handle, such as time delays and 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.