When seeking a modification of a current custody or parenting time arrangement, whether you are the one seeking it or if it is the other parent, it is important to understand the potential hurdles the filing party will have to overcome before a Court will actually effectuate any type of requested change to the schedule that is already in place.
“A judgment involving the custody of minor children is subject to modification at any time upon the ground of changed circumstances…the party seeking a modification bears the burden of proof.” Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div. 1958). If you have read this firm’s blogs in the past, you are no doubt familiar with the concept of “changed circumstances”; however, one of the most overlooked aspects of any application for change of custody and parenting time arrangements is the fact that whoever is seeking the modification has to the duty to prove or disprove any of the disputed facts of the matter. This is important not only if you are the party seeking the change, but also if you are the party defending an application for change.
The primary consideration for the court remains the best interests of the child(ren) and whether the alleged change in circumstances affects same. Our case law is clear that one “seeking to change the child’s custodial status will have the burden of proving by a preponderance of the credible evidence that the potentiality for serious psychological harm accompanying or resulting from such a move will not become a reality.” M.P. v. S.P., 169 N.J. Super. 425, 431-32 (App. Div. 1979). This can be done in many ways, the most effective being either expert testimony or some type of tangible evidence of egregious parenting or behavior on behalf of the other party. This same standard applies whether the custody/parenting time arrangement was ordered by the court, or agreed to by the parties. Abouzahr v. Mater- Abouzahr, 361 N.J. Super. 135, 152 (App. Div. 2003).
As a general principle, absent “exigent circumstances,” “changes in custody are not to be made without a plenary hearing.” Entress v. Entress, 326 N.J. Super. 125, 133 (App. Div. 2005). If the Court finds that the pleadings or applications submitted by the parties demonstrate that material facts are in dispute, the Court will order a plenary hearing, which is, in essence, a mini-trial. As such, should you be thinking about filing an application for modification of custody and parenting time, be aware that you could be in for a long and layered process before any court order will grant your request. It is important that you hire a qualified and experienced attorney to navigate through this potentially lengthy process.
If you or someone you know has any questions about an application or modification of custody and parenting time arrangements and what that entails, contact one of the skilled New Jersey divorce attorneys at Lyons & Associates at 908-575-9777. You can also fill out our online intake form.
Written by: William Lemega, Esq.