NJSBA Family Law Section

New client is the dad of a 10 month old.  He had regular parenting time with his son, but as a result of a recent dispute (centered on finances and mom's pretty overt control issues as revealed in her emails), mom has cut dad off from seeing his son.

I spoke to the law clerk regarding filing an order to show cause and was told that his judge "never considers parenting time to be emergent."  This is the exact opposite of my general experience on the issue....  I pointed out that there would be probably be irreparable harm to the bonding process if a 10 month old doesn't see dad for the 6-7 weeks that FD motions are running, he said I "could that make argument", but implied I'd have a hard row to hoe.

Does anyone know a of case (or rule or statute or other authority) that specifically says that parenting time should be considered emergent, especially when we're talking about an infant who is still bonding with his parents?

If this gets scheduled for 6 weeks out, I'm seriously considering advising client to just go pick up the baby from day care since he's still listed as a parent.  I know mom would file an OSC or a DV (claiming harassment, I assume?), which would get us into court quickly, but I hate to precipitate a crisis if there's a less contentious way to go about it.  I'd greatly prefer to just persuade the judge to just give us a quick return date if possible.


-------------------------------------------
David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
Voice: 609-737-2222
Fax: 609-737-3222
-------------------------------------------

Regardless of what the law clerk says your judge said or implied, I would definitely file the OTSC, but I would call someone with expertise in early childhood development (easier to get a turnaround then with a custody expert this time of year, and have them put together (you can prepare the draft) an affidavit (since I'm guessing you don't have a docket number) not referring to this family in particular, but puposefully to bonding, attachment and children in general at that age, stating the it would be inimical to the children's best interests to interrupt the mutual parenting time for that kind of duration and attach it. Ask them to included references to 803(c) 18 learned treatise confirming this and copy the pages referenced and attach as exhibit. I've done this successfully before, and was also successfull with getting energent assistance from the A.D. If you don't have an Order, as you won't if the judge doesn't hear you, I have been told by at least one of our gifted sitting A.D judges (I will not quote her directly) that, in the event the emergent intervention is needed and there is no order, she will (not speaking for all A.D. Judges) entertain a certification from counsel describing that despite due dilligence, the trial court would not issue an order ar agree to hear what you're claiming is an emergent matter. This is dicey, but it's the best I can come up with. Take care!

-------------------------------------------
Curtis Romanowski Esq.
Senior Attorney - Proprietor
Brielle NJ
(732)603-8585

-------------------------------------------






Original Message:
Sent: 06-28-2013 13:03
From: David Perry Davis
Subject: Parenting time cut off as emergent

New client is the dad of a 10 month old.  He had regular parenting time with his son, but as a result of a recent dispute (centered on finances and mom's pretty overt control issues as revealed in her emails), mom has cut dad off from seeing his son.

I spoke to the law clerk regarding filing an order to show cause and was told that his judge "never considers parenting time to be emergent."  This is the exact opposite of my general experience on the issue....  I pointed out that there would be probably be irreparable harm to the bonding process if a 10 month old doesn't see dad for the 6-7 weeks that FD motions are running, he said I "could that make argument", but implied I'd have a hard row to hoe.

Does anyone know a of case (or rule or statute or other authority) that specifically says that parenting time should be considered emergent, especially when we're talking about an infant who is still bonding with his parents?

If this gets scheduled for 6 weeks out, I'm seriously considering advising client to just go pick up the baby from day care since he's still listed as a parent.  I know mom would file an OSC or a DV (claiming harassment, I assume?), which would get us into court quickly, but I hate to precipitate a crisis if there's a less contentious way to go about it.  I'd greatly prefer to just persuade the judge to just give us a quick return date if possible.


-------------------------------------------
David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
Voice: 609-737-2222
Fax: 609-737-3222
-------------------------------------------

Curtis -
      Thanks - I found it.  FYI should anyone else ever need it, see below.

      Fortunately, I very recently researched the issue of establishing parenting time with infants and have a ready-made exhibit with copies of supportive studies from psychologists, etc.  (Which brings to mind the age-old issue ... it took me hours and hours to put it together the first time, now it'll take 10 minutes to print... Is it fair client #1 carries the full weight of the cost and #2 benefits?).




Irreparable harm is generally defined in equity as the type of harm that cannot be redressed adequately by monetary damages. Crowe, supra, at 132-133. The inadequacy of monetary damages depends on the nature of the injury or the right affected. In Parish v. Parish, 412 N.J. Super. 39 App. Div. 2010) the Appellate division took issue with the motion judge's suggestion that "parenting time and/or custody issues often do not raise issues justifying emergent and immediate relief". The Court cited to New Jersey Supreme Court's decision in Fawzy v. Fawzy, 199 N.J. 456, 474-75 (2009) for the proposition that custody and parenting time disputes are more than just financial contests and that they trigger the need for a family judge, acting as parens patriae, to prevent harm and protect the best interests of children. Fawzy v. Fawzy, 199 N.J. 456, 474-75). Thus the Parish court found that "interference with custody and parenting time may immediately and irreparably impact the best interests of a child and often represent classic cases necessitating court review". Parish v. Parish, 412 N.J. Super 39.





-------------------------------------------
David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
Voice: 609-737-2222
Fax: 609-737-3222
-------------------------------------------

Even with Parish, I continue to urge the inclusion of the affidavit from the MHE. The reason for this is in the event that the trial judge does not return your OTSC, you are ready with something to sharpen the general language of Parish into something more specifically supported for emergent review if necessary. Have a nice weekend and don't work too hard.

-------------------------------------------
Curtis Romanowski Esq.
Senior Attorney - Proprietor
Brielle NJ
(732)603-8585

-------------------------------------------






Original Message:
Sent: 06-28-2013 19:39
From: David Perry Davis
Subject: Parenting time cut off as emergent

Curtis -
      Thanks - I found it.  FYI should anyone else ever need it, see below.

      Fortunately, I very recently researched the issue of establishing parenting time with infants and have a ready-made exhibit with copies of supportive studies from psychologists, etc.  (Which brings to mind the age-old issue ... it took me hours and hours to put it together the first time, now it'll take 10 minutes to print... Is it fair client #1 carries the full weight of the cost and #2 benefits?).




Irreparable harm is generally defined in equity as the type of harm that cannot be redressed adequately by monetary damages. Crowe, supra, at 132-133. The inadequacy of monetary damages depends on the nature of the injury or the right affected. In Parish v. Parish, 412 N.J. Super. 39 App. Div. 2010) the Appellate division took issue with the motion judge's suggestion that "parenting time and/or custody issues often do not raise issues justifying emergent and immediate relief". The Court cited to New Jersey Supreme Court's decision in Fawzy v. Fawzy, 199 N.J. 456, 474-75 (2009) for the proposition that custody and parenting time disputes are more than just financial contests and that they trigger the need for a family judge, acting as parens patriae, to prevent harm and protect the best interests of children. Fawzy v. Fawzy, 199 N.J. 456, 474-75). Thus the Parish court found that "interference with custody and parenting time may immediately and irreparably impact the best interests of a child and often represent classic cases necessitating court review". Parish v. Parish, 412 N.J. Super 39.





-------------------------------------------
David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
Voice: 609-737-2222
Fax: 609-737-3222
-------------------------------------------

I am intrigued because I do a lot of work defending parents whose children have been removed by Division of Child Protection & Permanency (formerly DYFS), and I also do appeal briefs for the Public defender (Office of Parental Representation) when parental rights to children have been wrongfully terminated forever.  If you are willing to share your brief/research, I would be very grateful because I am sure much of it can be utilized when I do this work.  My email is [email protected], or you could fax it to me at 856-352-0276.  Thanks in advance........Carol
-------------------------------------------
Carol Weil Esq.
Laurel Springs NJ
(856)352-0050

-------------------------------------------






Original Message:
Sent: 06-28-2013 19:39
From: David Perry Davis
Subject: Parenting time cut off as emergent

Curtis -
      Thanks - I found it.  FYI should anyone else ever need it, see below.

      Fortunately, I very recently researched the issue of establishing parenting time with infants and have a ready-made exhibit with copies of supportive studies from psychologists, etc.  (Which brings to mind the age-old issue ... it took me hours and hours to put it together the first time, now it'll take 10 minutes to print... Is it fair client #1 carries the full weight of the cost and #2 benefits?).




Irreparable harm is generally defined in equity as the type of harm that cannot be redressed adequately by monetary damages. Crowe, supra, at 132-133. The inadequacy of monetary damages depends on the nature of the injury or the right affected. In Parish v. Parish, 412 N.J. Super. 39 App. Div. 2010) the Appellate division took issue with the motion judge's suggestion that "parenting time and/or custody issues often do not raise issues justifying emergent and immediate relief". The Court cited to New Jersey Supreme Court's decision in Fawzy v. Fawzy, 199 N.J. 456, 474-75 (2009) for the proposition that custody and parenting time disputes are more than just financial contests and that they trigger the need for a family judge, acting as parens patriae, to prevent harm and protect the best interests of children. Fawzy v. Fawzy, 199 N.J. 456, 474-75). Thus the Parish court found that "interference with custody and parenting time may immediately and irreparably impact the best interests of a child and often represent classic cases necessitating court review". Parish v. Parish, 412 N.J. Super 39.





-------------------------------------------
David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
Voice: 609-737-2222
Fax: 609-737-3222
-------------------------------------------