Docket No. A-5520-18T1

Submitted by New Jersey Family Law Firm, Hark and Hark.

In a recent unpublished decision, the Appellate Division heard argument on a request to set aside a Family Part Order changing custody.

In Justice, plaintiff and defendant were married and had one child, a son born in 2009, before they divorced in October 2013. The Amended Final Judgment of Divorce (JOD) granted both parties joint legal custody of their son, with plaintiff as the parent of primary residence and defendant as the parent of alternate residence. The parenting schedule, as stipulated in the JOD, gave defendant parenting time of one weeknight overnight and every other weekend, as well as vacation time and a holiday schedule.

Over four years, plaintiff deprived defendant of parenting time in a variety of ways, and that at least two judges warned plaintiff if she continued to interfere with defendant’s parenting time, the court would change the custody arrangement.

Defendant filed a motion to enforce litigant’s rights directing that plaintiff return to New Jersey with the parties’ son from Delaware, where plaintiff had moved without defendant’s consent. Defendant also sought a change in custody.

The court ordered that defendant was the parent of primary residence and plaintiff the parent of alternate residence, and suspended plaintiff’s parenting time for six weeks pending mediation. Through mediation, the parties entered into an agreement on April 25, 2019, which scheduled plaintiff’s parenting time for every other weekend, without prejudice to her right to appeal the March 15 order. Plaintiff did not file a timely appeal of the March 15 order, nor did she move for reconsideration.

Months later, plaintiff moved for relief from the March 15, 2019 order under Rule 4:50-1(b) and (f), asserting newly discovered evidence and requesting a plenary hearing.  The parties son had trouble adjusting to the new school district.  Plaintiff claimed the new evidence was defendant stopped taking the child to his doctor appointments and stopped filling the child’s prescriptions. Plaintiff also asserts the judge erred when he did not address defendant’s lack of knowledge and refusal to accept the child’s diagnoses.

The trial court denied plaintiff’s motion to set aside the court order.  Plaintiff failed to file a motion for reconsideration and appeal in time.  Rather, months later, plaintiff attempted to file a motion to set aside the court order on the basis of newly discovered evidence.  The court denied the motion, as the evidence was not newly discovered.  The Appellate division affirmed for the same reasons.

Motions to reconsideration are vital, but usually you only have 20 days to file the motion.  After that period, you must file for an appeal if you want relief from the order you disagree with.  After that, motions to set aside family court orders are the only relief left, and they are rarely granted.

It is vital to seek representation for your initial application to make sure you are not in a position with a court order you disagree with.  However, if you find yourself in this position, contact an attorney immediately, as the time to act is very short.

At Hark & Hark, we help parents with divorce, custody, domestic violence, child support, alimony issues and more.

In recognition of these trying financial times, we are reducing fees and working with clients to come up with manageable payment plans. Initial consultation is always free and we are available remotely.

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Michael J. Collis, Esquire

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Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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