Do you now want to change a child custody agreement or a child custody determination previously made by a New Jersey family court?
Although it is certainly possible, it is not easy.
Moreover, when you file a Motion for a change of custody application, you must be prepared to present your best case to the New Jersey family court judge, because a New Jersey appeals court is unlikely to overturn the initial determination.
Under New Jersey family law, you have the burden of proving that there has been a change in circumstances, and that the change will harm your child’s welfare.
New Jersey courts have construed a child’s “welfare” as meaning the safety, happiness, physical, mental and moral welfare of the child. It includes many elements and concerns, not just the physical well-being resulting from the furnishing of adequate food, clothing and shelter.
While a child’s preference has a place in a New Jersey family court’s decision, it is not conclusive.
The difficulty of obtaining a change of custody was illustrated in a Decision made a New Jersey appeals court earlier this year in a case entitled Johnson v. Howard.
In that case, the mother had been awarded primary residential custody of the parties’ daughter in 2003. Ten years after the divorce, the father took the daughter to Georgia during his summer vacation parenting time and did not return her to New Jersey.
A New Jersey family court judge entered an Order compelling the father to bring the daughter back to New Jersey issuing a warrant for his arrest. After the father failed to comply with that Order, the judge suspended his parenting time.
Ultimately, the daughter returned to New Jersey and the warrant for arrest was withdrawn, but the New Jersey family court judge did not reinstate the father’s parenting time.
The father then filed an application for a change in physical custody to make him the daughter’s primary residential parent. He claimed that the mother was abusing and mistreating the daughter and not providing her with an adequate education.
Relying on testimony from the New Jersey Division of Child Protection and Permanency (DCPP)—formerly known as DYFS–the parties’ testimony and an interview with the daughter, the New Jersey family law judge decided that the father did not show a change in circumstances or mistreatment and abuse by the mother.
The father’s appeal was denied.
The New Jersey appeals court cited the rule in New Jersey family court cases that an appeals court must defer to the expertise of New Jersey family court judges, who have the opportunity to hear all of the testimony, consider all of the evidence and evaluate the credibility of each witness.
Therefore, a New Jersey family court’s factual determinations will only be reversed if the appealing party can show that there has been an “abuse of discretion.”
Salvaggio Law Group devotes its entire practice to New Jersey Family Law matters, including those related to Child Custody. If you want to talk, please call us at (973) 455-1220 or fill out the Contact Form on our firm’s website.