J.M. v. C.K. FAMILY LAW 2021-01-19 NJ Appellate Division
In this case, there is a custody battle between mother (J.M) and father (C.K) over their two children.
Submitted by New Jersey Family Lawyer, Jeffrey Hark.
The defendant and plaintiff divorced after more than 10 years of marriage. The property settlement agreement (PSA) provided joint custody of their children. However, the primary residence of the children is her home. There is a long history of post-divorce litigation between the two. Most recently, she had filed a domestic violence restraining order against her ex-husband in 2018. In the restraining order, he is allowed to communicate with her via text message for matters concerning the children.
In August 2019, the defendant applied for an Order to Show Cause. Meaning, the court will enforce his parenting time, relocated custody exchange, and impose penalties if his ex-wife did not follow through. His ex-wife was not upholding the custody agreement and would not exchange custody. She then sought a plenary hearing to grant her sole and physical custody of the children. In September 2019, at trial the judge agreed to enforce the defendant’s parenting time but denied the relocation of custody and penalties. Her request for custody modifications was also denied because she failed to present sufficient evidence that the agreement needed to be modified.
When seeking a modification to custody agreements some matters must be evaluated:
- A) the arrangement is no longer in interests of the child.
- B) The party seeking modifications must show a change in circumstances that affects the welfare of the child.
- C) if the party can show or give information as to why the agreement must be modified, they are entitled to a plenary hearing.
On appeal, the plaintiff claims that her ex-husband does not respond to her text messages. In doing that she believes it endangers their children because that is their only form of communication. She also accuses the trial judge of abusing his discretion and challenges his ruling that there will be no custody modifications.
The appellate court agreed with the trial court. The plaintiff and defendant have a long history of continually filing police reports and motions against each other. The court agreed that it must be frustrating, but she did not provide sufficient evidence that her children were in any harm or in a harmful environment. Also, the restraining order permitted but did not require the defendant to text the plaintiff concerning the children. There will not be custody agreement changes at this time.
Custody agreements are complicated because there are two very passionate parties acting on the love for their children and sometimes in spite of one another. Ultimately, in custodial cases, the welfare of the child is always the greatest concern. The court was not presented evidence that the child is in harm. Therefore, there were no modifications made to the agreement.
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