Custody Evaluations: Are They for Masochists Only?

Divorce litigation, even for the most stoic litigants, is a gut-wrenching experience.  Family secrets, long buried and almost forgotten, become fodder for personal attacks.  Financial “indiscretions” in a cash business that resulted in under-reporting income on tax returns can result in the court notifying the Department of Treasury.  Politically incorrect statements (especially in written form such as texts and emails) are now captured for the court to demonstrate that one spouse is a racist or gender-biased.

But perhaps the worst experience a parent will be subject to during a divorce is the custody evaluation.  Simply put, when custody is at issue, a qualified mental health professional may be asked to prepare a forensic child custody report.  The conclusions of the expert are often used by a judge to decide legal custody, physical custody, parental time-sharing, holiday schedules and even rules about communicating with regard to the children.

The forensic expert gathers data using various “scientific” testing techniques, personal interviews of the parents, personal interviews of the children, and personal interviews of third parties (such as grandparents, teachers, therapists and many others).  The expert will observe each of the children with each parent.  The parents will forward to the expert for review any and all material that the parent deems relevant.  Around and around this process continues until the expert is satisfied that a comprehensive report can be issued.

The report will contain summaries of the data accumulated.  Some expert reports virtually regurgitate every allegation made by one parent against the other no matter how unfounded and embarrassing.  Some experts include in their report virtually all observations of the parents, no matter how remotely connected to assessment of parenting skills.  The testing is “graded”, observations are summarized and a psychological profile of each parent and child is written up.  The expert’s conclusions and recommendations follow.

Complicating matters, it is not uncommon for there to be a court-appointed evaluation by one expert and also additional evaluations requested by each parent, using their own evaluators.  So each individual including the children may be interviewed by numerous experts.  The above doesn’t include the possibility of the Court ordering a guardian ad litem (child guardian who reports to the judge) or an actual independent guardian for the children.

The only guarantee I ever give to clients is that nobody is ever smiling after a forensic psychological evaluation reveals every blemish an individual has.  Testimony at trial about personal hygiene, sexual eccentricities and violent outbursts will be humiliating.  By the end of a trial, a judge may be left to decide not which parent functions best, but which parent will do the least harm to the children.

My personal belief is that attorneys often do not fully drive home to their clients just how imprecise and dysfunctional the custody evaluation process can be.  A parent who truly cares about their child should try to avoid these evaluations and negotiate a fair compromise.  They should take a step back from the emotional reasons behind their custodial positions and understand that the process itself may create more problems than it resolves; especially to the child who will carry the experience into adulthood.

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Out of State Relocation with Minor Children

As society has become increasingly more mobile, more than ever people are moving to take advantage of work or education opportunities, for lifestyle, or because they have remarried, among a host of other reasons. Not uncommonly, these moves are often to a new state. When the individual wishing to move is divorced with children, and where they are the primary parent or custodian, this desire takes on a special importance as one generally cannot up and move without consent from the other parent or court approval.

Custodial parents have long had a right to relocate, however. But the difficulty has always been balancing the needs and desires of the parent wanting to relocate with those of the other parent, as well as accounting for the best interests of the subject children. Baures v. Lewis, 167 N.J. 91, 115 (2001) (noting that the conflict can be viewed as between the parties’ needs and desires as intertwined with the child’s interests) (emphasis added).

Critically, in Baures, supra., the New Jersey Supreme Court declared that, “social science research has uniformly confirmed the simple principle that what is good for the custodial parent is good for the child” and that “[w]hat it does not confirm is that there is any connection between the duration and frequency of visits and the quality of the relationship of the child and the non-custodial parent.”  Id. at 106-107. 

With that as a backdrop, it is important to understand that the custodial parent seeking to relocate out-of-state bears the initial two-pronged burden of 1.) presenting a sufficient initial showing of evidence to establish that a good faith reason for the move exists and 2.) that the move will not be inimical to the child’s interests.

In assessing the above threshold questions, the courts have delineated the following factors for consideration:

(1)  the reasons given for the move;

(2)  the reasons given for the opposition;

(3)  the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move;

(4)  whether the child will receive educational, health and leisure opportunities at least equal to what is available here;

(5)  any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location; 

(6)  whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child;

(7)  the likelihood that the custodial parent will continue to foster the child’s relationship with the noncustodial parent if the move is allowed;

(8)  the effect of the move on extended family relationships here and in the new location;

(9)  if the child is of age, his or her preference; 

(10)       whether the child is entering his or her senior year in high school, at which point he or she should generally not be moved until graduation without his or her consent;

(11)       whether the noncustodial parent has the ability to relocate;

(12)       any other factor bearing on the child’s interest. 

Baures, supra., at 118. 

Once a sufficient showing has been made, the burden shifts to the noncustodial parent, who, in order to defeat the relocation request, must produce evidence opposing the move as either not in good faith or inimical to the best interests of the child.  After the noncustodial parent has gone forward, the moving party may rest or adduce additional evidence regarding the noncustodial parent’s motives, the visitation scheme, or any other matter bearing on the application.

As with most areas of family law, such determinations are highly fact sensitive. The cases often will include the reports of custody experts to opine on the move’s potential impact on the children. This can be financially burdensome to the parties, as well as stressful for the children involved. Nevertheless, as the case law makes clear, “[t]he custodial parent who bears the burden and responsibility for the child is entitled, to the greatest possible extent, to the same freedom to seek a better life for herself or himself and the children as enjoyed by the noncustodial parent.” Id. at 110 (citing Cooper v. Cooper, 99 N.J. 42, 55 (1984)).

Grandparent Custody and Visitation Rights

Grandparent Custody Rights
Grandparent Custody Rights

We often field calls from grandparents who have been denied access to their grandchildren, and who feel that they are unfairly being left out of their grandchildren’s lives.  This sadly arises commonly when the grandparent’s own child, the mother or father of the child has died, and for various reasons the remaining parent has chosen not to permit continued contact with the grandchildren. In some situations, both parents are alive and well and have had a falling out with one or both sets of grandparents where once there was a relationship. This can no doubt be difficult for the grandparents, especially those also grieving the loss of their own child. Where the mother and father are divorced and the grandparent’s child dies, the legal bond creating the “family” as such is not even present, and there is oftentimes acrimony between grandparents and their former in-law arising out of the divorce.

What about the rights of grandparents to see their grandchildren? What about the right of fit parents to raise their children as they deem appropriate?  The right of a grandparent to petition for visitation is codified under N.J.S.A. 9:2-7.1. The statute sets forth eight factors for courts to consider in assessing applications for grandparents to have access to the grandchildren. The procedure by which courts are to apply the above statute was detailed in the seminal case of Moriarty v. Bradt, 177 N.J. 84 (2003). In that case, our Supreme Court noted that, though parental autonomy is a fundamental right deeply embedded in the American culture, in certain instances, pursuant to the state’s parens patriae power, that right can, and will, be encroached upon. Id. at 101, 114-115. The polestar, however, is harm to the child or children should visitation be denied. It is not, as many often confuse it, alleged harm to the grandparent at having been denied access to the grandchildren. This is a critical distinction fundamental to any application for grandparent visitation.

In Moriarty, the court took special note of the trial court’s findings relating to the relationship of the grandparents with the children. The court highlighted specifically the fact that the relationship between the grandparents and the children was extensive and significant. Moreover, the maintenance of this relationship was found to be critically important given the mother’s recent death. Contact with the grandparents was found to provide a link to the children’s mother and that branch of their family. Id. at 119. Significant as well was the attention by the court to expert testimony from a psychologist who found that the visitation plan proffered would effectively allow alienation of the mother’s family by the father. The therapist went on to point out that, given the father’s overt hostility toward the grandparents, successful alienation of the children would result in psychological harm to them. Id. at 121-122.

Moriarty made clear the fact that any successful application for grandparent visitation rests on the ability to articulate specific harms to the children. Moreover, these harms need to be able to be proven through the evidence presented at the hearing. Subsequent cases have reinforced and further delineated just what kind of showing must be made, as the ability to articulate an identifiable harm to the child is paramount to justify interference with a parent’s fundamental due process rights.  See Rente v. Rente, 390 N.J. Super. 487 (App. Div. 2007); Mizrahi v. Canon, 375 N.J. Super. 221, 234 (App. Div. 2005) (noting that, “Conclusory, generic items … are not a sufficient basis to warrant such an intrusion into a parent’s decision making.”).

In practical terms, a grandparent who has been the caretaker of a child or who has stood in locus parenti at some point prior to being denied visitation with the child is in the best position to establish the kind of bond that, if removed, could cause harm to that child. Unfortunately, most grandparents do not fit this mold. And while there is no doubt that they love and care for their grandchildren, these less involved relationships are not generally of a quality satisfying the burden to trump a parent’s presumptive right to raise their children as they see fit, including to whom the children have access.

Dueling Grandparents?

When the biological parents are unfit to parent their child, it can place a tremendous burden and accompanying stress on the replacement custodians; often one of the sets of grandparents.  The burden may have just increased with a recently published case (meaning that new law has been created). 

Essentially, the stresses of having to step in for unfit parents isn’t limited to the “custodial” grandparents against the biological parents, but can often extend to the non-custodial grandparents; the grandparents who did not receive a Court order awarding them custody of the child.  Both sets of grandparents love their grandchild.  However, they may have different views on many custodial issues such as: who should the child be living with, who should share time with the child, how should the child be raised, etc. 

Generally, one of the sets of grandparents will be initially awarded temporary physical custody of the child.  If the custodial grandparents elect to shut the other grandparents out of the child’s life, what can that second set of grandparents do? 

Under the newly clarified law, the Court has made it clear that a grandparent with custody does not have the same level of autonomy as the actual parents of a child would have.  Grandparents with custody cannot force the other grandparents to satisfy with the Court a difficult burden of proof before visitation will be shared.  All that the non-custodial grandparents must show is that it is in the child’s best interests to have a relationship with BOTH grandparents.  This is not a difficult burden.

In my opinion, this clarification of custodial rights will have important ramifications moving forward, including possibly expanding the visitation rights of other close relatives such as aunts and uncles.

Relocation Made Easy(er)

In recent years, the pendulum has continued swinging in the direction of making it easier for the parent with physical custody of the children to relocate out-of-state with the children.  That trend has continued in 2011 with a key decision by the New Jersey Supreme Court (our highest court).

But to me, the interesting twist of that decision (Morgan v. Morgan) was that the Supreme Court sent the relocation and custodial issues back to the trial court to review in light of the four-year passage of time since the trial court’s initial decision to permit relocation.  This leaves open the possibility that based on significant changes in the parent’s and the children’s lives in the intervening four years, permission for the relocation may actually be reversed.  So for instance, if the parent who was left behind can prove that the move has effectively cause the children to be alienated, will the trial court in hindsight now retroactively refuse to grant permission to move with the children?

If there had not been a complete upheaval in the children’s lives as a result of the relocation, imagine what those children will face if four years later they are told they will be returning to New Jersey.

Adoptive Parents and Sibling Visitation Rights

In a recent unanimous New Jersey Supreme Court decision, In the Matter of D.C. and D.C., it was established that adoptive parents cannot ignore blood bonds between siblings and may be ordered to permit sibling visitation where it is necessary to avoid harm to the child. This case concerned twin girls who were placed in a foster home at three months. The twins’ older brother, then 13, was placed with an adult sister in Virginia, Nellie, who wanted to adopt him. Nellie wanted to adopt the twins as well, but in the interim won visitation rights.

In August 2007, Virginia’s child welfare agency recommended placing the twins with their sister, but revoked the recommendation in December 2007 largely due to her financial problems at the time and the poor academic progress of the 13-year-old brother. In the same month, the court terminated the natural mother’s parental rights to all three of the children. In January 2008, the N.J. Division of Youth and Family Services (DYFS) denied Nellie’s application to be a kinship guardian of the twins and terminated her visitation rights with them. Nellie sued in April 2008, seeking placement of the twins in her care, or in the alternative, the right to regularly visit them. DYFS took the position that it controls a child’s life after termination of parental rights and that control is not subject to judicial review.

In June 2008, Hudson County Superior Court ordered continued visitation between Nellie, her 13-year-old brother and the twins. However, the next month, the twins’ foster mother said she would not facilitate such visitation. In New Jersey, the standard for determining custody arrangements is the “best interests” of the child. Nellie then sought to enforce the June 2008 order, but the Court ruled that, in light of the termination of their natural mother’s parental rights, the best interests of the twins trumped the siblings’ rights to visitation. The Appellate Division agreed with the decision that Nellie be denied visitation. The New Jersey Supreme Court, however, focused on the question of sibling visitation rights before and after adoption, thereby clarifying the rights of children in placement from this point forward.
Before adoption, the Child Placement Bill of Rights Act gives children in out-of-home placements the right to visit with the child’s sibling on a regular basis and to otherwise maintain contact if the children are placed separately. This means that before adoption, the right to sibling visitation is presumed and DYFS has an obligation to facilitate it. If DYFS opposes visitation, it must prove that such contact is against the child’s best interests. After adoption, a different standard applies. Sibling visitation is then governed by the Grandparent and Sibling Visitation Statute under the same rules that apply to biological families. Accordingly, adoptive parents may be ordered to permit sibling visitation if the party seeking the visitation can prove that the child would be harmed if denied sibling contact.
The New Jersey Supreme Court has clarified the rights of children in placement to have contact with their siblings following the termination of parental rights. As a result, sibling visitation rights may be enforced even after adoption.

Separation of Husband and Wife Before a Complaint is Filed

Often one of the first questions a matrimonial attorney gets asked by clients contemplating a divorce is, “how do I obtain a legal separation?”  The answer is that in the State of New Jersey there is no such thing as a “legal separation”.  If one wishes to separate from their spouse, they simply move out.  Unlike many other states, New Jersey does not have a law on legal separation.  

In this State, one does not have to ask for the court’s permission or obtain a formal decree of any sort in order to be able to move out of the marital home and “officially” separate from his or her spouse.  Of course this freedom to separate is not a license to abandon all financial and domestic responsibilities

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