Jun 11

Custody And Visitation Rights

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The courts of New Jersey have expressed a policy encouraging protection of family relationships by favoring full visitation and custody rights in order “to insure that [the children] shall not only retain the love of both parents but shall at all times and constantly be `deeply imbued with love and respect for both parents.’” Smith v. Smith, 85 N.J. Super. 462, 469 (J.D.R. Ct. 1964); Jackson v. Jackson, 13 N.J. Super. 144 (App. Div. 1951). In a contest between parents, the happiness and welfare of the children should be the determining factor and the court should strain every effort to attain for the child the affection of both parents rather than one. “The greatest benefit a court can bestow upon children” is to insure that they shall not only retain the love of both parents but shall at all times and constantly be “deeply imbued with love and respect for both parents.” Turney v. Nooney, 5 N.J.Super. 392, 397 (App. Div. 1949). In advancing the best interests of the child, “the courts should seek to minimize, if possible, conflicting pressures placed upon a child and to give effect to the reasonable agreement and expectations of the parents concerning the [issue in dispute] before their marital relationship foundered, subject to the predominant objective of serving the child’s welfare comprehensively.” Asch v. Asch, 164 N.J. Super. 499, 505 (App. Div. 1978).

The New Jersey Legislature has found and declared “the public policy of this State to assure minor children of frequent and continuing contact with both parents [after divorce] and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.” N.J.S.A. 9:2-4. Both parties here have a fundamental right to “the custody, care and nurturing of their child.” Watkins v. Nelson, 163 N.J. 235, 245 (2000). As neither has a right that is superior to the other, “the sole benchmark” to a determination of the parenting time issue is the best interests of the child, Sacharow v. Sacharow, 177 N.J. 62, 80 (2003), that is, what will protect the “safety, happiness, physical, mental and moral welfare of the child,” Beck v. Beck, 86 N.J. 480, 497 (1981).

Parental rights to custody and visitation are held “in high esteem” and are guaranteed judicial protection.  Wilke v. Culp, 196 N.J.Super. 487, 496 (App.Div.1984), certif.. denied, 99 N.J. 243 (1985). New Jersey courts have consistently held that denial of contact with a parent wrongly punishes the innocent child. As recently as May 7, 2012, the New Jersey Appellate Division ruled in T.J. v T.J. Docket No A-0253-11T4, stated that “[t]he focus of every judicial determination about custody and parenting time is “on the ‘safety, happiness, physical, mental and moral welfare’ of the children.” Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)). Courts must therefore be continually vigilant to ensure that efforts to safeguard a child do not unintentionally have the contrary effect.

Thus, a relationship between a child and parent should be curtailed by the court only when in the child’s best interests and not as a means to punish a parent. See In re Guardianship of K.H.O., 161 N.J. 337, 350 (1999) (explaining that termination of parental rights is appropriate only to effectuate the best interests of the child and not as a means to punish a parent for past transgressions) (citing In re Guardianship of A.A.M., 268 N.J. Super. 533, 549 (App. Div. 1993) (Kestin, J., concurring)). Modification is appropriate when there is a change in circumstances warranting it, i.e., a development that affects the welfare of the child. Beck v. Beck, 86 N.J. 480, 496 (1981); Sheehan v. Sheehan, 51 N.J.Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958).

The issue is “two-fold and sequential.” Faucett v. Vasquez, 411 N.J. Super. 108, 127 (App. Div. 2009), certif. denied, 203 N.J. 435 (2010). The party seeking a modification “must first make a prima facie showing . . . that a genuine issue of fact exists bearing upon a critical question such as the best interests of the child. . . . Once a prima facie showing is made, [the party] is entitled to a plenary hearing to resolve the disputed facts” Id. at 127-28 (internal citations and quotations omitted).

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