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A party who seeks modification of a judgment or order that incorporates a property settlement

A party who seeks modification of a judgment or order that incorporates a property settlement agreement regarding custody or visitation “must meet the burden of showing changed circumstances and that the agreement is [no longer] in the best interests of the child.” Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div.), certif. denied, 178 N.J. 34 (2003); see also Finamore v. Aronson, 382 N.J. Super. 514, 522-23 (App. Div. 2006). 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.

The 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 have a fundamental right to “the custody, care and nurturing of their child[].” Watkins v. Nelson, 163 N.J. 235, 245 (2000) (quoting In re D.T., 200 N.J. Super. 171, 176 (App. Div. 1985)). Because neither has a right that is superior to the other, “the sole benchmark” to a determination of their parenting arrangements 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) (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)). The child’s best interests are controlling “no matter what the parties have agreed to.” P.T. v. M.S., 325 N.J. Super. 193, 215 (App. Div. 1999) (quoting Giangeruso v. Giangeruso, 310 N.J. Super. 476, 479 (Ch. Div. 1997)).

Pursuant to N.J.S.A. 9:2-4, a judge determining custody shall consider the following factors:

the parents’ ability to agree, communicate and cooperate in matters relating to the child; the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child’s education; the fitness of the parents; the geographical proximity of the parents’ homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents’ employment responsibilities; and the age and number of the children. A parent shall not be deemed unfit unless the parents’ conduct has a substantial adverse effect on the child.

“The age of the child certainly affects the quantum of weight that his or her preference should be accorded[.]” Lavene v. Lavene, 148 N.J. Super. 267, 272 (App. Div.), certif. denied, 75 N.J. 28 (1977). However,

“[a] trial judge is not bound by a young child’s preference to live with one parent over the other.” The judge is only required to give “due weight to the child’s preference;” the preference is a factor which the judge should consider along with all of the other relevant factors. Thus, stated preferences are not conclusive but must be considered in applications for modification.

[Ali v. Ali, 279 N.J. Super. 154, 169 (Ch. Div. 1994) (quoting W.W. v. I.M., 231 N.J. Super. 495, 511 (App. Div. 1989)); see also Sheehan v. Sheehan, 51 N.J. Super. 276, 291 (App. Div.), certif. denied, 28 N.J. 147 (1958); Boerger v. Boerger, 26 N.J. Super. 90, 103 (Ch. Div. 1953)].

Courts should also evaluate the “‘character, condition, habits and other surroundings’ of the parents in considering their fitness and the welfare of the children.” Sheehan, supra, 51 N.J. Super. at 291 (quoting Clemens v. Clemens, 20 N.J. Super. 383, 392 (App. Div. 1952)).

Rule 5:8-1 requires mediation in accordance with Rule 1:40-5 in genuinely contested parenting disputes.

If mediation is not successful, Rule 5:8-1 allows the judge to order a best interests evaluation.

If, after these steps have been taken, the issues are still contested by the parties and a parent is still seeking the change, a plenary hearing will be required.

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)486-2200; or by Email. [HOME]

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

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