Parenting time–formerly referred to as visitation–addresses the specifics of a custody order or agreement.
The parties’ lawyers will do their best to broker a deal or fight for the parenting time sought by their clients. Likewise, judges will make a call if they have to. But in my opinion, the parties themselves are best equipped to work out a reasonable parenting time arrangement on a day-to-day and hour-to-hour basis. After all, it will be the parties who, along with their children, will be implementing the parenting time arrangement into the fabric of their daily lives.
Accordingly, the parties should recognize and work together to protect the best interests of their children. Ideally, they will push aside their own differences and work towards a fair resolution of the parenting time issue. As stated above, New Jersey Parenting Time Law itself is grounded in the belief that: no “stranger in a black robe” will be better equipped to resolve intimate family matters than the parties themselves.
New Jersey Parenting Time Law: Basic Concepts
Custody will determine which party is the parent of primary residence (physical custody) and which party is the parent of alternate residence. Absent good cause otherwise, New Jersey law generally favors liberal parenting time with the parent of alternate residence, so that the children will maintain a post-divorce relationship with both parents.
Exceptions to this general rule do exist, such as when parenting time would not be in the best interests of the children. One such instance is when the parent of primary residence has a history of abuse or domestic violence. Even then, however, the Courts generally favor restrictions on parenting time (such as requiring that parenting time be supervised) to denying either party parenting time altogether.
One of the seminal New Jersey parenting time cases is McCown v. McCown, 277 N.J.Super. 213, 218 (App. Div. 1994). The McCown Court stated that children have a right to a loving relationship with both parents. The parent of primary residence generally has a responsibility to foster and develop the relationship between the parent of primary residence and their children. The parent of primary residence may therefore be sanctioned if he or she attempts to alienate the children from their other parent. Such sanctions can include up to the loss of primary custody.
Parenting time rights are generally only guaranteed to the actual parents or guardians. Outside parties generally have no legal right to parenting time, even when those outside parties are non-guardian grandparents. Parenting time is not contingent upon the payment of child support.
Parenting Time Agreements
In New Jersey, parenting time arrangements may be determined by the Agreement of the parties or by the Court. Either way, the disposition of this issue must be made in the best interests of the parties’ children.
Most Courts and family law attorneys alike will look to a traditional parenting time arrangement to provide a basic framework for parenting time. Negotiations will then focus on modifying the Agreement to reflect the wishes of the parties. The parent of alternate residence is generally given alternate weekends for overnights, along with an evening or two each week. Fights over specific holidays can oftentimes hold-up an otherwise done deal.
Holidays are generally alternated between both parents based upon even and odd years. For instance, if the Father had the children for Thanksgiving in odd years, then the Mother would have the children for Thanksgiving in even years. The parties can enter into an Agreement for parenting time/custody as part of the Marital Settlement Agreement or as an independent Consent Order prior to the ultimate disposition of the case. This Agreement would then be embodied and/or incorporated into the Marital Settlement Agreement.
Modifying Parenting Time Agreements
Either party may, at essentially any time, move for a modification of the present parenting time arrangement. If the parties cannot agree upon a post-judgment modification, then the party seeking the modification will often file a Motion. The party filing the post-judgment Motion must first establish a change in circumstances. Then, he or she must also demonstrate that the modification would be in the best interests of the parties’ children.
Parenting time issues can be one of the most contentious parts of the divorce. Luckily, in many instances the parties can work together to create an amicable resolution of the parenting time issue.
Should You Use a Parenting Coordinator Post-Divorce?
Making day-to-day parenting decisions can be difficult enough in an intact
family. I grew up in a family that allowed me to watch PG or even PG 13 movies at a young age. My wife recalls not realizing Disney movies had villains until she was much older—her mother would fast-forward through the “scary” scenes.
With the newest Star Wars out, for instance, there was some discussion about whether my older daughter was too old to accompany me to the theater. It’s a little issue, but even with two parents in an intact relationship raised much more debate (about appropriate parenting) than anticipated. The same small issue might arise when your 9-year-old son asks to have a soda instead of milk at a party. One parent might think it is alright while the other might object.
In a New Jersey divorce, parents are generally given joint legal custody. This means that the parents should both collaborate together on important wide-ranging (in other words, not day-to-day) decisions such as deciding a child’s religion, educational decisions, and the like. Parents are then generally given wide-latitude in raising their children as they see fit (assuming nothing rising to the level of abuse or illegality occurs) during their own parenting time.
Part of living Happily EVEN After is being able to effectively co-parent. That doesn’t mean there won’t be issues or that it will be easy. Sometimes having that referee available—or the threat of that referee available—can make the difference between post-divorce litigation and headaches or appropriate compromise. It’s not cheap, it’s definitely a luxury, but a good parenting coordinator can really be a game-changer for those that require that additional incentive.
For instance, in the above example if the 9-year-old son asks for soda while at his mother’s then the answer may be “yes,” and while at his father’s the answer may be no. While this “two separate homes, two separate sets of rules” may be somewhat confusing to children from divorced families, it is also not wholly untethered from what many children experience (children will instinctively know which parent they can manipulate better in a specific circumstance).
But what if these smaller, day-to-day issues begin to fester and the divorced or separated parents lack the desire or ability to negotiate such issues together? In such instances, the parties may agree (or the court may appoint) what is known as a parenting coordinator.
As defined in the Overview section of the Program Standards for the Parenting Coordinator Guidelines (Pilot Program, 2007),
A Parenting Coordinator is a qualified neutral person appointed by the court, or agreed to by the parties, to facilitate the resolution of day to day parenting issues that frequently arise within the context of family life when parents are separated. The court may appoint a Parenting Coordinator at any time during a case involving minor children after a parenting plan has been established when the parties cannot resolve these issues on their own. The Parenting Coordinator’s goal is to aid parties in monitoring the existing parenting plan, reducing misunderstandings, clarifying priorities, exploring possibilities for compromise and developing methods of communication that promote collaboration in parenting. The Parenting Coordinator’s role is to facilitate decision making between the parties or make such recommendations, as may be appropriate, when the parties are unable to do so. One primary goal of the Parenting Coordinator is to empower parents to develop and utilize effective parenting skills so that they can resume the parenting and decision-making role without the need for outside intervention. The Parenting Coordinator should provide guidance and direction to the parties with the primary focus on the best interests of the child by reducing conflict and fostering sound decisions that aid positive child development.
The “Pilot” program for parenting coordinators ended in 2012 in New Jersey (although courts may still appoint them and parties may still agree to utilize them). In 2013, I understand that Pennsylvania family courts essentially barred the use of parenting coordinators. The use of such coordinators in New Jersey has thus waxed and waned over the years. Nevertheless, this role (often filled by an individual with mental health, social work, or divorce law background) still remains an option—and at times something foisted upon parties whether they desire the use of such a “referee” or not.
It should also be noted that the primary role of such coordinators is to facilitate communication between the divorced parties regarding parenting issues. The parenting coordinator cannot take the place of a judge and cannot enforce or modify any orders, but rather should attempt to work within the confines and parameters of any active agreements between the parties.
Parenting coordinators may thus make an expected (or not so expected) cameo in a New Jersey divorce proceeding or respecting post-judgment issues. It’s important to have an understanding of their purpose should you consider their use or be ordered by the Court to utilize such services. Effectively utilizing parenting coordinators can be a luxury worth pursuing for those that are divorced but have a strong desire to effectively communicate and co-parent despite remaining baggage and issues. It’s a neutral third party and sometimes what we really want is to be heard. Being heard by a parenting coordinator is not cheap but it’s much less expensive than petitioning to be heard by a judge on post-divorce issues regarding children and parenting. Issues.
When Your Ex’s Baggage Threatens Your Happily EVEN After Post-Divorce
When children are involved, there are few things more frightening than learning
your ex-spouse is using drugs again, relapsing, or having a mental breakdown or psychotic break. This section of the book will discuss some of the legal steps that that may be considered when approaching such situations and to best preserve your children’s safety and happiness as well as your own.
The Impact of Drugs and Mental Health Issues on a Marriage
As a divorce lawyer practicing in Central New Jersey my clientele tend to reflect the demographics of the surrounding region, which is to say that many of my clients have good jobs and significant resources. Nevertheless, mental health issues and drug and alcohol abuse issues tend to present across all demographics. Addiction and mental health issues for one or both parties to a divorce is a common issue and is often-times the (sometimes unspoken) impetus for the divorce itself.
Provided there are no children and absent domestic violence concerns, such issues may not make much of a difference in the treatment of the case or the entry of a Marital Settlement Agreement (a/k/a the “Divorce Agreement.”) When children are present, however, there may be significant negotiation regarding custody and parenting time issues, particularly with relevant New Jersey law suggesting that you may be found guilty of neglect and/or child endangerment for leaving children with an intoxicated spouse.
The Divorce Agreement in such circumstances will often require certain steps on the part of the spouse that uses drugs and/or has severe mental/emotional health issues, there may be requirements of supervised visitation as well as AA/therapy requirements, and perhaps requirements for drug testing.
But What if Such Issues Occur After the Divorce is Finalized?
In many regrettable instances, however, issues will flare up after the divorce has already been finalized. For instance, you may drop off or pick up your children and when you see your spouse you may see the tell-tale signs that something is not right.
It could be a full-borne psychiatric break, slurred speech or red eyes perhaps indicative of drug or alcohol abuse, or other signs that you as the expert on your former spouse may immediately recognize. In this instance, when the divorce is already finalized, what are the next steps?
• Document everything. Many situations involving drug and/or alcohol abuse (and even severe mental health issues) may be momentary in nature. Your spouse that is clearly under the influence of drugs and alcohol (or not sufficiently well to care for your children) on the date in question may be the same person that comes to court looking sober and put-together. It’s important to consider recording/taping the behavior, making immediate notes, and/or contacting the police and/or DCPP as appropriate.
• Consider filing an Order to Show Cause. Motions generally take a month or longer to be heard. Conversely, Orders to Show Cause are reserved for when a matter is time-sensitive (such as impacting on immediate the safety and welfare of children) then courts allow for entry of an Order to Show Cause. Courts generally frown upon “self-help” actions such as withholding your children, so court intervention may be necessary to temporarily (at least at first) suspend parenting time or requiring supervised parenting time.
• Pursue Legal Actions While Evidence is at its Strongest. Much like the “Cycle of Violence,” many relapses from drugs or alcohol and/or psychiatric episodes are cyclical. By the time you determine it is best to pursue the case, your spouse may be on the straight and narrow again and you’ll be left wondering what to do when the next meltdown inevitably arises. Taking action when your spouse is committed, is in rehab, or is otherwise at their worst can help courts or agencies understand the severity of the situation and inure towards taking appropriate actions now so that the “next time” does not occur.
• Move swiftly to Protect the Children. Even if a court order requires parenting time, looking the other way may be seen by courts or agencies as inappropriate action on your part, if you leave your children in a situation where they are likely to be harmed. It is important to consider acting quickly if a situation warrants it.
• If a crime has been committed or is being committed, contact DCPP and/or the Police. Courts and lawyers will never be able to move as quickly as the police in mobilizing if there is a crime occurring or a risk to your safety or that of your children. Consider moving quickly to contact the police and/or appropriate agencies such as the DCPP (formerly known as “DYFS”) if you believe abuse, neglect, or the like are occurring by your former spouse/former partner.
When you have children you will never be completely free of your ex. Don’t let their negative actions have harmful consequences on your children’s safety. Nip issues in the bud to ensure the best outcome for you and your children.
Post-Divorce Out of State Relocation/Removal Law
One thing most of us take for granted is the ability to live anywhere we choose. Moving can mean uprooting your family, changing your job, or otherwise going on an adventure. But for those who are divorced or separated, moving out of state with children can also trigger serious legal considerations.
Removal Law in New Jersey
Removal law is governed by N.J.S.A., 9:2-2, which provides that when the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated, or living apart…they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify same, nor while under that age without the consent of both parents, unless the court shall otherwise order.
In O’Connor v. O’Connor, 349 N.J. Super. 381, the Court addressed some of the differences between parents that share physical custody (regardless of whether same is “de facto” shared physical custody or court-ordered/agreed to shared physical custody v. where one parent is the parent of primary physical custody and the other parent has secondary or alternate physical custody.
Some of the language in O’Connor includes: “In a child custody modification context in determining the standard to be applied to a parent’s removal application, the focus of the inquiry is whether the physical custodial relationship among parents is one in which one parent is the ‘primary caretaker’ and the other is the ‘secondary caretaker.’ If so, the removal application must be analyzed in accordance with the criteria outlined in Baures. (Emphasis Added).
Conversely, in a child custody modification context, if the parents truly share both legal and physical custody then an application by one parent to relocate and remove the residence of the child to an out-of-state location must be analyzed as an application for a change of custody, where the party seeking the change in the joint custodial relationship must demonstrate that the best interests of the child would be better served by residential custody being primarily vested with the relocating parent.
If one parent is the primary physical custodian, however, then if that parent can demonstrate they are not leaving the state for bad faith reasons, then it is up to the non-relocating parent (non-custodial parent) to prove that the move would be inimical to the children’s best interests. Thus procedurally, the first step of a removal test considers the type of parenting arrangement between the parties.
As the two (2) prong analysis in Baures v. Lewis, 167 N.J. 91 provides: A custodial parent will, absent joint physical custody, be permitted to move if (1) that party has a good faith reason to do so; and (2) the children will not suffer from the move. Baures provides a whopping twelve (12) factors to assist in this analysis.
Thus, procedurally, the first step of the removal test considers the type of parenting arrangement between the parties and whether the matter is actually an application for a change in custody as opposed to a removal case. For example, a removal motion by a party in a case where the children rotate between houses, with each parent assuming full parental responsibility half of the time, is clearly an application to change the custodial status which cannot be maintained from a distance. In contrast, an application by a custodial parent to move away in a case in which the noncustodial parent sees the children once or twice a week and is not seeking to change that state of affairs, is a removal motion. The possible scenarios are limitless; whether the motion should be viewed through the Baures prism or as one for custody will depend on the facts. In a custody case, the focus is entirely on the child’s best interests. In a removal case, the parents’ interests also take on importance. Morgan v. Morgan 205 N.J. 50.
Let’s imagine a case where the Plaintiff is the parent of primary residence. She is merely seeking relocation to New York, and the Defendant’s parenting time will not be interfered with in any manner. The parties own consent order, signed as part of settlement in a previously disputed paternity case, demonstrates that although they share joint legal custody, it is the Plaintiff who is the parent of primary residence and exercises the majority of time with the child.
The twelve (12) factors in Baures are as follows would include:
(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;
(6) Whether a Visitation and Communication Schedule can be Developed that Will Allow the Non-Custodial Parent to Maintain a Full and Continue Relationship;
(7) The Likelihood that the Custodial Parent will Continue to Foster the Child’s Relationship with the Non-Custodial Father;
(8) The Effect of the Move on Extended Family Relationships;
(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;
(11) Whether the noncustodial parent has the ability to relocate;
(12) Any other Factor Bearing on the Child’s Interest.
The Court would view each of these factors in crafting a decision. Leaving for legitimate reasons such as a change in work or to be close to family will be viewed in a better light than merely a desire to leave the state.
It should be noted that the non-custodial parent may leave the state any time they desire but doing so would likely open them up to a potential motion to change parenting time.
The law in this area is constantly changing and very fact-sensitive, so it is best to discuss these issues with an attorney before you plan to relocate.
Parenting Time Law Overview – Conclusion
I hope you enjoyed this overview of parenting time law in New Jersey. As with most areas of the law, parenting time outcomes are extremely fact-sensitive.
Partner with Carl Taylor, Esq.
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