Brian G. Paul
successfully represented a father in his quest to obtain a post-divorce transfer of custody of his then 15 and 10 year old children. At the time of the divorce several years earlier, the parties were granted joint legal custody of the children, with the mother designated as the children’s primary caretaker. The husband was provided parenting time on alternating weekends, as well as two dinner visits each week. In January of 2006, the children’s physician contacted the father and advised him that she saw a bite mark on his then 13 year old daughter’s knee while conducting a routine examination. The daughter indicated that the mother had bitten her during a domestic dispute. Further questioning uncovered that the mother had, amongst other things, been hitting the children with a wooden spoon, withholding food and using corporal punishment to discipline them. Brian filed an emergent application on the father’s behalf, and the Court entered an order transferring temporary custody of the children to the father, limiting the mother to supervised visits and ordering the mother to undergo a psychiatric examination.
After a DYFS investigation substantiated the abuse and the court ordered the parties to undergo updated custody evaluations, Brian represented the father during a 3 day custody trial that was conducted in order to determine whether the temporary change of custody should be made permanent. The Trial Court agreed with Brian’s argument that the father should be awarded sole legal custody to make all decisions involving the children, inasmuch as the mother’s past actions had demonstrated that she was difficult to deal with on such issues. The Trial Court further awarded the father primary physical custody of the children, and provided the mother every other weekend parenting time. However, when so doing, the Trial Court agreed with Brian’s argument that, given the 15 year old daughter’s advanced age and tumultuous relationship with her mother, the child should be given the option of deciding which of her scheduled parenting time sessions she wished to attend. The mother appealed, and the Appellate Division affirmed the decision in its entirety. In so doing, the Appellate Division expressly noted that the Trial Court’s decision to permit the 15 year old to decide whether she wished to attend parenting time was a valid exercise of the court’s discretion in light of the credible evidence presented at trial. This is one of the first instances where the Appellate Division has affirmed a child’s right to decide whether they wish to participate in parenting time.
Click here to view the decision in Adobe Acrobat format (PDF).