NJSBA Family Law Section

Dave, there was an unreported App. Div. opinion decided on 10/1/15 – Skinner v. Cole that dealt with that issue.  Facts were different (older child, no real dangerous behavior that caused the transfer of custody from PPR to PAR, kid wanted to move to PAR's residence, etc.)

The App Div  determined that the trial judge's  decision to change custody without a plenary hearing was error. 

Lisa M. Radell, Esq.

207 South Main Street

Cape May Court House, NJ 08210

Tel (609) 465-9910

Fax (609) 465-9920

It depends on whether or not DCPP is involved.  If it is involved, unless conceded, the court should conduct a hearing as to whether there is abuse and/or neglect.  Temporary custody would continue with the father while the .   mother would be given the opportunity to stay sober for a longer period of time and document it.  DCPP, if satisfied there was no longer danger to the child would eventually return the child to the mom (could take many months).  The custody issue in the FM  case would be litigated separately by Motion/OSC under the FM docket no.  Father would use substantial change in circumstances and best interest arguments.

If DCPP is not involved,  the father would have the burden of showing a substantial change in circumstances such that it is not long in the best interest of the child for mom to have custody.  The court is probably going to want a hearing to determine this.  In the meantime temporary custody would be with the dad.

Debra Schneider Esq.

Family Law Mediator and Litigator

41 4 Hackensack Ave, Suite 200

Hackensack, NJ 07601

201-445-8381

When the Court is presented with a motion to change custody, the threshold determination is "change of circumstances".  Obviously, the Court may always take action to protect the child from abuse or neglect of either parent.  But the basis to do so is not founded upon a permanent change of circumstances in this instance.  It is based on parens patriae authority, and/or, in essence N.J.S.A. 9:6-8.34(a), which allows a parent to initiate a child protective services action upon probable cause to believe a child may be facing harm or substantial risk of harm.  Though courts rarely cite to this statutory provision to support the immediate transfer of temporary custody, because parens patriae authority exists, same applies.

However, when conducting a plenary hearing to transmute the temporary custody transfer into a more permanent custody decree, the Court must then look to all factors under 9:2-4, not merely the factor upon which Dad would seek to rely – i.e., "the safety of the child … from physical abuse by the other parent".  If at the time of a plenary hearing, the only thing Dad could rely upon is the incident – however severe – he likely could not cross the threshold.  He may point to the length of time he had the child in his temporary custody to further bolster his claim, but this argument is only peripherally directed to the custody factors.

When DCPP removes a child and places him with the non-custodial parent, based on this same set of facts, Dad would not be entitled to keep the child once Mom remediated the concern unless that disposition was determined to be in the best interests of the child for other reasons.  Why, then, would a different analytical framework apply when Dad makes a mad dash to the courthouse to obtain temporary custody, thereby absolving the Division of the need to do so?  If the aim is keeping the child safe, procedural disparities between the different parts of the courthouse should not alter the outcome.