Modification Of Custody in A Post-Divorce Judgment Matter in Which the Parties Were Both Attorneys
Docket No. A-1816-19
Decided June 2, 2021
Submitted by New Jersey Family Lawyer, Jeffrey Hark.
In a recent unpublished decision the Appellate Division reviewed a trial court’s modification of custody in a post divorce judgment matter in which the parties were both attorneys.
In Abdelkader, a post judgment divorce matter, the Court reviewed possible changes of circumstances revolving around the parties’ child. Both parties were attorneys. Prior to trial, the parties engaged in excessive motion practice. One of the motions and pretrial dispute involved a child interview.
The Court ultimately decided to conduct a child interview prior to trial, even through the child was nine. The Court made a transcript of the interview available to both parties afterwards. The interview was conducted over plaintiff’s objection.
Once the trial was conducted, the court designated defendant as parent of primary residence (PPR). Plaintiff appealed the trial court’s decision and issues prior to trial.
Plaintiff first argued the Court failed to consider the terms of the parties’ Property Settlement Agreement (PSA). The Appellate Division found this unpersuasive. Plaintiff argued she had a right of first refusal as to parenting time issues and vacations, however the Appellate Division found that the trial court did not abuse its discretion in ordering the right of first refusal only applying to situations when the other party is unavailable to utilize their parenting time.
Plaintiff then argued the Court abused its discretion by allowing the child interview for a child who was too young and immature. The Appellate Division found no abuse of discretion, finding the Court appropriately analyzed the child’s cognition, and that although he was nine, the Court could ascertain important information with regard to the best interest of the child by conducting the interview.
Ultimately, Plaintiff’s contentions were each denied and the Appellate Division affirmed the trial court’s order of defendant being PPR.
This decision is important to understand the deference that family court judges are given on appeal. There are very limited circumstances in which trial court judges seated in the family division can be overturned, and usually it has to do with legal decision. Any factual findings and evidentiary decisions – those mentioned above – are reviewed on an abuse of discretion standard. This standard is very high and very hard to overcome on appeal. Therefore, it is important to make sure you do everything you can at the trial court level to get the best outcome, otherwise it may be too late.
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