All Child Custody Matters Are To Be Treated Equally: New Jersey Appellate Division Decision States The Not-So-Obvious

January 22, 2019 | By Thomas A. Roberto

If the custody or parenting time of a minor child is at issue before a court, should the legal process differ depending on whether the parents of the child at issue were married? Basic principles of equity, and frankly commonsense, would suggest not. Until recently, however, there has been some debate about whether the process and procedures applicable to New Jersey parents litigating child custody issues as part of a divorce proceeding (under the matrimonial or “FM” docket) should differ to those applied to parents litigating those very same issues but who were never married (under the non-dissolution or “FD” docket). Enter the January 2, 2019 reported (i.e., precedential) New Jersey Appellate Division decision in J.G. v. J.H.

At its most basic level, the Appellate Division decision in J.G. v. J.H. confirms that all contested custody actions should be accorded the same, or a similar, process and be assessed under the same legal standard. If child custody is an issue, trial courts are obligated to apply and make decisions based upon the best interests of the child standard, analyzing the factors set forth in N.J.S.A. 9:2-4(c), regardless of the parent’s marital status or the type of docket (FM, FD or otherwise). So, in this regard, the J.G. v. J.H. decision brings about uniformity in the application of law to contested custody matters, with the same standard to be applied across the board without consideration of marital status. J.G. also tells us that, if custody is contested and the parties’ respective positions on the issue of custody are in conflict, a plenary hearing (or trial) will be required with an opportunity for pre-trial discovery (trial courts may limit discovery, but should not deny it outright without good cause). This could be a bit of a “Catch-22” for some litigants, as well as attorneys and judges.

Divorce matters under the FM docket are assigned timeframes and deadlines for exchanging information, conducting appraisals and retaining experts if necessary (referred to as the process of “discovery”). In contrast, FD proceedings are regarded as “summary proceedings,” meaning essentially that they are to be resolved by the Court expediently with no automatic right to discovery. The benefit of a summary proceeding, in theory, is that the case does not drag on for months at a time and the Court is able to make a decision after reviewing the parties’ pleadings and hearing argument from the parties or their counsel. The very significant drawback of a summary proceeding, however, is that an important decision about the custody of a child is made quickly, without discovery or consideration of all relevant factors under N.J.S.A. 9:2-4(c), as was the case with the trial court decision in J.G. For most parents, the drawback of a potentially hasty decision about child custody greatly outweighs the benefit of a potentially expedient resolution. The J.G. Court agrees.

While the J.G. decision may not be stating anything entirely new, it attempts to bring about an end to any lingering confusion in regard to the disparate treatment of parents and children based upon marital status. No matter what type of case, the same rules, process and procedure apply to all child custody matters, with the best interests of the child standard controlling.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.

About the Authors

Thomas Roberto

Thomas A. Roberto

Associate

Tom represents clients in all aspects of matrimonial law matters involving issues of custody, parenting time, child support, alimony, equitable distribution, domestic violence, adoptions, and prenuptial agreements. He handles all stages of...

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