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The High Burden for Modification of Child Custody Agreements in NJ

By Snyder & Sarno on August 29, 2018

Child custody is typically a top priority for parents experiencing a divorce.  A custody arrangement can always be determined by a judge, but parents often come to an agreement as to a custody arrangement and parenting time without court intervention.  With respect to such agreements, a party seeking to modify the custody arrangement must meet the high burden of showing changed circumstances and that the agreement is not in the best interests of a child.  “The paramount consideration in child custody cases is to foster the best interests of the child. Thus, a motion for a change in custody will be governed initially by a changed circumstances inquiry and ultimately by a simple best interests analysis.” R.K. v. F.K., 437 N.J. Super. 58, 62 (App. Div. 2014). A recent decision by the Appellate Division, Manes v. Jerow, addressed a child custody modification issue and exemplified the high burden of changed circumstances that must be shown to warrant modification of a child custody agreement.           

In Manes, the parties divorced in 2014 after almost 10 years of marriage.  Their only child is now nine years old.  The parties had a property settlement agreement (PSA) in place that was incorporated into their dual final judgment of divorce (FJOD).  The PSA had a custody and parenting plan (CPP) under which the parties shared custody of their son with neither parent declared as the parent of primary residence. 

The parties also shared the expense of a nanny who helped care for the child.  Post-judgment mediation led to an agreement to use the nanny until the end of the child’s school year, after which the ex-wife (plaintiff) would be solely responsible for the expense.         

Less than a month after the agreement, plaintiff filed a motion requesting a change in the shared custody arrangement.  Specifically, she asked that she be designated the parent of primary residence and that defendant’s parenting time be changed to every other weekend and Wednesday and Thursday evenings. 

Plaintiff’s certification in support of her motion made several allegations, most notably including the following: (1) defendant’s economic circumstances caused his termination of the nanny; (2) the parties’ son was becoming “increasingly distressed and anxious” after visiting defendant; (3) defendant’s then-fiancé was unkind to and unsupportive of their son; (4) she only agreed to equal parenting time on the condition that a shared nanny continue caring for their son; (5) defendant no longer directly communicated with her, and therefore a shared parenting time was no longer a practical option; (6) defendant scheduled all extracurricular activities of their son on plaintiff’s parenting time in order to spend more time with their son; and (7) she served as the child’s primary caregiver, arranged medical appointments, and facilitated and monitored his school work and activities.  The nanny reinforced many of plaintiff’s contentions and certified that defendant was not involved with their sons’ school work or extracurricular activities.    

Defendant filed a cross-motion contradicting plaintiff’s allegations in which he argued that plaintiff failed to make a prima facie showing of changed circumstances warranting a change in the custody arrangement.  He also sought to enforce the CPP provisions of the PSA.      

The judge conducted an interview of the child who largely negated plaintiff’s allegations.  The child said that defendant does help with his homework and that they play sports and video games together.              

After meeting with the parties, the judge issued an order that continued the shared custody arrangement.  The judge therefore denied plaintiff’s motion and found that she did not establish changed circumstances affecting the best interests of the parties’ child.  The order also granted defendant’s motion to enforce the CPP in the PSA.

On appeal, plaintiff contended that she made a sufficient showing of changed circumstances warranting a modification of the custody arrangement.  She reiterated many of the same arguments discussed above.  The Appellate Division affirmed the judge and held that there was not a sufficient showing of changed circumstances to warrant a change in the parties shared custody arrangement in the best interests of the child.

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







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