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The Statutory-Factor Battle for Custody after a new Jersey Divorce

By Snyder Sarno D'Aniello Maceri & da Costa LLC on March 12, 2018

In any custody determination in New Jersey, the over-arching consideration for a court is the best interests of the child.  Despite the numerous other factors a court considers under New Jersey’s custody statute, N.J.S.A. 9:2-4, the paramount concern is always to “safeguard the safety, happiness, physical, mental and moral welfare of the child.”  D.A. v. R.C., 438 N.J. Super. 431, 450 (App. Div. 2014).  The parties to a custody dispute are generally always entitled to a full plenary hearing to develop the material factual record of the case.  The Appellate Division recently addressed the “best interests” standard in Alintoff v. Alintoff, a case in which the judge granted the ex-husband (plaintiff) parent of primary residential custody because it was determined that the ex-wife (defendant) would not cooperate in including plaintiff in any decision making regarding their disabled son.                 

In that case, defendant fled from the marital home in September 2011 after marital problems with plaintiff.  She took the parties’ two-year-old son, who had various cognitive learning disabilities, without plaintiff’s consent or knowledge, to her parents’ home in Brooklyn.  Defendant claimed that she feared for her son’s life because plaintiff possessed a gun in the house, but the judge found that her conduct and assertions were in retaliation on her belief that plaintiff was having an affair and concealing marital assets. 

Plaintiff subsequently filed for divorce and an order to show cause (OTSC) to force defendant to return their son.  The parties then entered a consent order of shared legal and residential custody, and plaintiff was granted parenting time on weekends.  Following the order, defendant took numerous steps to complicate any cooperation between the parties in caring for their son.  Some examples include: (1) she filed unsubstantiated complaints about plaintiff with the Division of Youth and Family Services; (2) claimed, without proof, that plaintiff had an alcohol problem; and (3) refused to meet with plaintiff to discuss anything related to their child, as evidenced by text messages. 

The parties hired Patricia Baszczuk, Ph.D., in January 2013 to conduct a custody evaluation.  Dr. Baszczuk observed the parties and their respective relationships with the child for over a year.  The evaluation also included psychological testing, interviews of the parties’ friends and family, communications between the parties, and videos of the parties’ interactions with the child.  Dr. Baszczuk applied the statutory factors in N.J.S.A. 9:2-4 and opined that the child’s best interests would better be served with plaintiff as the parent of primary residential custody.  Specifically, Dr. Baszczuk found that defendant was less willing to cooperate in discussions regarding the care of the parties’ child and made unfounded accusations.  Dr. Baszczuk further opined that plaintiff more able to detach himself from the litigation and focus on parenting. 

Defendant also obtained a custody expert, Maria Salvanto, Ph.D., who contradicted Dr. Baszczuk’s opinion by asserting that defendant should receive primary residential custody.  The judge found Dr. Salvanto’s report without merit, however, because she failed to follow the Specialty Guidelines for Psychologists Custody/Visitation Evaluations. 

In determining custody, the judge considered each of the statutory factors under N.J.S.A. 9:2-4 in ultimately awarding primary residential custody to plaintiff.  The judge granted defendant parenting time three out of every four weekends and Wednesday afternoons. 

Relative to the factors, the judge found that both parties had a “close and loving relationship” with their son, and that both were willing to accept custody.  Both parties also had flexible work schedules and therefore had the ability to be the parent of primary residential custody.  The judge also found that both parties would meet the child’s needs for therapy and special care.  What ultimately moved the scales in favor of plaintiff was the finding that, if granted primary residential custody, he would be “more likely than defendant to coparent and work cooperatively.”  The judge asserted that, based on the evidence, defendant was not likely to work closely with plaintiff to negotiate the resolution of issues relating to their child.  For example, defendant tended to make unilateral decisions regarding their child’s education such as enrolling him in a pre-school and summer camp without consulting plaintiff. 

On appeal, the Appellate Division affirmed the judge, and reiterated that a judge’s “primary and overarching consideration is the best interest of the child.”  The Appellate Division also emphasized that when the evidence is substantially testimonial and involves determinations of credibility, additional deference is given to the Family Part.  Here, the judge’s comprehensive written opinion applied findings of fact to each of the statutory factors under N.J.S.A. 9:2-4.   

With respect to the credibility assessments of the third parties who testified on the parties’ behalf, the Appellate Division asserted that evaluators tend to be more objective than treating physicians.  Thus, the first source of information about the parents’ mental health and fitness to be a parent should be evaluations by “independent experts appointed by the courts or hired by the parties for the purpose of litigation, rather than the professionals who have established relationships with the parties.”                                                

If you have any questions regarding child custody, please contact the skilled matrimonial attorneys at Snyder Sarno D’Aniello Maceri & da Costa LLCCall us today at (973) 274-5200. 

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