NEW JERSEY APPELLATE DIVISION TAKES A STAND AGAINST PARENTAL ALIENATION

Parental alienation cases are unfortunately common in the frum community.

They are heart breaking, both because of the damage to the children and the fact that the alienated parent is often robbed of large parts of the children’s childhood. Parents who lose time with their children or are precluded from events due to alienation, never get that time or experience back.

Courts are often slow to take action, and Bais Din is often slower - if at all. 

In an extremely positive development, the New Jersey Appellate Division has just taken drastic action to put an end to a case of parental alienation.

The main losers in this case are the children who never asked to be alienated.

The other loser is their mother who was represented by Lakewood Attorney Leah Lederberger Esq. of Lederberger Law.

The parties did a get in bais din in 2019 and obtained a civil divorce by way of an April 5, 2022 dual judgment of divorce in which the parties incorporated an MSA.

 

In the MSA, the parties agreed to have joint legal custody of the children.

In paragraph one of the MSA, the parties also agreed: The parties have agreed to an equal timesharing parenting agreement for a period of six months following the execution of this agreement, with the acknowledgement that as of recent, the two oldest children are not exercising parenting time with the Father consistent with the schedule set forth herein, although they are working towards reunification.

In paragraph nine of the MSA, the parties agreed to retain a Parenting Coordinator who would make binding recommendations if the parties are unable to resolve disputes.

Paragraph sixteen of the MSA was entitled "Six-Month Review" and provided: After a six-month period following the execution of this Agreement, the parties shall review the custody/parenting time schedule to determine a schedule that is in the best interests of the children at this time. The parties shall attend at least one session with the Parenting Coordinator to mediate an appropriate parenting schedule. If mediation is unsuccessful, either party shall have a right to file an application with the court to modify the Custody/Parenting time schedule set forth herein without the necessity of demonstrating a substantial change in circumstances. Each party further reserves the right to obtain a best interests forensic custody evaluation at that time at his or her own cost.

[As established by the New Jersey Supreme Court in Lepis v. Lepis, before a party can argue that modification to the custody plan is "in the best interests of the child," the party must first make a prima facie showing of a "change in circumstances." The intent of this MSA was to permit the parties - because two children were not seeing their father - to seek a court-ordered parenting time modification after six months without the necessity of demonstrating a substantial change in circumstances.]

Six months are execution of the MSA, the husband sought mediation pursuant to paragraph sixteen of the MSA. Subsequently, the husband advised the wife that he had retained someone to perform a best-interests evaluation. The wife declined to participate in the evaluation.

On January 26, 2023, the husband filed a motion in court to compel the wife "to cooperate with a best[-]interests evaluation by his expert, . . . in accordance with Paragraph 16 of the [MSA]." The motion also sought the scheduling of a plenary hearing, after the completion of the best-interests evaluation, for the court to grant him fair parenting time with his children.

In support of the motion, the husband asserted paragraph that sixteen of the MSA "makes clear that [the parties] agreed that no showing of changed circumstances was necessary to modify the custody and parenting time schedule," the purpose of that paragraph "was to avoid unnecessary motion practice," and the parties' "intent when signing the MSA was to attend mediation and then obtain best[-]interests evaluations if [they] were unable to agree."

The wife opposed the motion, and sought to continue alienating her children from their father.

On May 5, 2023, the Family Part judge in Ocean County denied the husband's motion.

In paragraph one of the order, the judge denied the aspect of plaintiff's motion seeking to compel defendant's cooperation with his expert's best-interests evaluation. The judge found that while the MSA gave the parties the right to obtain a custody evaluation at their own cost, nothing in the MSA compelled the parties to "cooperate [in] or facilitate such an evaluation." 

In paragraph two of the order, the judge denied a plenary hearing regarding the request to modify custody and parenting time without first demonstrating a substantial change in circumstances. The judge found the MSA did "not have any weight in overturning the caselaw which governs the court in determining whether to entertain the parties' application."

The judge concluded "there is no justification on the present record to find that a change in custody at this time is in the children's best interests."

This ruling enabled the wife to continue to alienate her children from their father.

Until now.

In a written ruling just released today, agreeing that the MSA unambiguously permits the parties to file a custody or parenting-time modification motion "without the necessity of demonstrating a substantial change in circumstances," Appellate Division Judges Vernoia and Gummer affirmed paragraph one of the order but reversed paragraph two.

"We see nothing unfair or unjust about those agreed-upon procedures nor any reason to think they would lead to an absurd result. Focusing on the last sentence of paragraph sixteen – "Each party further reserves the right to obtain a best interests forensic custody evaluation at that time at his or her own cost" – in isolation, the wife contends the phrase "at that time" is somehow ambiguous and would enable the husband to "wake up after two, three or five years after entry into the MSA, invoke this contractual right, and change the custodial status quo on a dime." Nonsense. Looking as we must at the language of paragraph sixteen and the MSA as a whole, the parties clearly agreed to a one-time waiver of the change-in circumstances obligation, occurring only after the initial six-month review period and an unsuccessful mediation. It does not provide a carte blanche waiver to be invoked at any time on the whim of a party. 

"The Family Part judge declined to enforce paragraph sixteen, believing, despite its clear language, that the husband had to establish a change in circumstances pursuant to the "procedural framework" outlined in Lepis. In so holding, the judge failed to appreciate the temporary nature of the parties' initial six-month custody and parenting-time arrangement and the reasonableness of their mutual decision to attempt to resolve their initial custody and parenting-time disputes by first participating in a six-month review and mediation before proceeding to a best-interests evaluation and trial. For these reasons, we reverse paragraph two of the order, in which the judge denied the aspect of the husband's motion seeking a plenary hearing regarding his requests to modify custody and parenting time without first demonstrating a substantial change in circumstances," the Appellate panel wrote.

Parental alienation is child abuse. Congratulations to the winning attorney Cheryl E. Connors Esq. of Tonneman & Connors, LLC.

This ruling comes after another ruling - as previously reported here on FAA News - in which the Appellate Division took drastic action to put an end to a case of parental alienation by affirming the trial judge's ruling giving dad sole legal and residential custody and limiting mom to alternate weekends.

To join the FAA News WhatsApp Status, click here.