NJ & CT News

NEW JERSEY

Steps Spelled Out for Determining Custody in Abuse Cases

New Jersey's Supreme Court in April detailed the guidelines it expects courts to follow when determining custody in child abuse cases. In so doing, the court overturned a family court judge's decision to award custody to a father despite the fact that no hearing on the issue was ever held. The Supreme Court's justices found that the lower court judge's actions had deprived the mother of her due process rights when he based his decision solely on ex parte findings that the mother was guilty of abuse and neglect.

The New Jersey resident mother originally had custody of the two subject children, while the father, with whom they visited regularly, lived in Florida. The mother and one of the children had an argument in March 2006, and a state trooper was called to the scene. He determined that the mother had been drinking and that she had had some sort of physical contact with the child. Because of this report, the Department of Youth and Family Services (DYFS) filed a complaint. The mother agreed to substance-abuse counseling, but a judge awarded temporary custody to the children's father, and later found that there had been abuse and neglect.

DYFS created a report on the case in which it recommended that the children be returned to their mother. However, DYFS and the law guardian decided at the last minute not to follow the recommendations in the report because the children had by then expressed their wish to remain in Florida. DYFS and the law guardian therefore recommend placement with the father. On Oct. 26, 2006, Superior Court Judge Peter Buchsbaum, without holding a hearing or taking testimony, granted the request by DYFS and the law guardian to terminate the hearing and have the children remain with their father.

Writing for a unanimous State Supreme Court on appeal, Justice John Wallace Jr. said, “We hold that the statutory framework of Title Nine [N.J.S.A. 9.6-18.21 to -8.73] provides that upon a finding of abuse and neglect, the offending parent or guardian is entitled to a dispositional hearing to determine whether the children may safely return to his or her custody, and if not, what the proper disposition should be.” The justices found that the correct procedure in this and similar cases is for courts to determine if children can be safely returned to the custody of their custodial parent. To do so, a dispositional hearing should be held in which each parent is given the opportunity to demonstrate to the family court judge that the health and safety concerns that led to the removal of the children have been addressed and remedied.

CONNECTICUT

Court Inappropriately Applies New York 'Extreme Hardship' Standard

The Appellate Court of Connecticut held in Reichert v. Bronson (113 Conn.App. 757 (Conn.App. 4/21/09)) that the Superior Court, judicial district of Hartford, improperly applied New York law when it terminated maintenance for a parent adjudged an abuser on the basis of the payor's extreme hardship. The error was that the “extreme hardship” cited ' loss of income on account of having to care for the traumatized children, costs of their therapy, etc. ' was not documented or otherwise concretely established.

The Reichert case involved a mother who was initially granted custody of her children by a New York court and was awarded maintenance and child support. She was subsequently convicted of sexually abusing one of the children and custody was transferred to the children's father. The father had by this time moved from New York to Connecticut, in whose courts he sought modification of the maintenance order. After several years of wrangling, the Connecticut Superior Court terminated the father's maintenance obligation, saying he had proven his claim that, as a result of the mother's criminal actions, he had to give up his career as a national and international photographer to be available for his sons and care for them. This, the court found, constituted “extreme hardship” under New York Domestic Relations Law ' 236(B)(9)(b).

On appeal, the Appellate Court of Connecticut noted that the father's income had actually gone up following transfer of the custody of the children to him. This increased income came from his own earnings, from an inheritance and from the substantial contributions of his new wife to the household's income. In addition, although he complained that his children's therapy bills were substantial because of their mother's actions, he did not provide documentation to back up this claim. “At its essence,” concluded the court, “the plaintiff's argument before the trial court was that the transfer of custody, in and of itself, constituted extreme hardship. That proposition has been considered and rejected by New York courts.” See Harkavy v. Harkavy, 167 App.Div.2d 510 (1990).

NEW JERSEY

Steps Spelled Out for Determining Custody in Abuse Cases

New Jersey's Supreme Court in April detailed the guidelines it expects courts to follow when determining custody in child abuse cases. In so doing, the court overturned a family court judge's decision to award custody to a father despite the fact that no hearing on the issue was ever held. The Supreme Court's justices found that the lower court judge's actions had deprived the mother of her due process rights when he based his decision solely on ex parte findings that the mother was guilty of abuse and neglect.

The New Jersey resident mother originally had custody of the two subject children, while the father, with whom they visited regularly, lived in Florida. The mother and one of the children had an argument in March 2006, and a state trooper was called to the scene. He determined that the mother had been drinking and that she had had some sort of physical contact with the child. Because of this report, the Department of Youth and Family Services (DYFS) filed a complaint. The mother agreed to substance-abuse counseling, but a judge awarded temporary custody to the children's father, and later found that there had been abuse and neglect.

DYFS created a report on the case in which it recommended that the children be returned to their mother. However, DYFS and the law guardian decided at the last minute not to follow the recommendations in the report because the children had by then expressed their wish to remain in Florida. DYFS and the law guardian therefore recommend placement with the father. On Oct. 26, 2006, Superior Court Judge Peter Buchsbaum, without holding a hearing or taking testimony, granted the request by DYFS and the law guardian to terminate the hearing and have the children remain with their father.

Writing for a unanimous State Supreme Court on appeal, Justice John Wallace Jr. said, “We hold that the statutory framework of Title Nine [N.J.S.A. 9.6-18.21 to -8.73] provides that upon a finding of abuse and neglect, the offending parent or guardian is entitled to a dispositional hearing to determine whether the children may safely return to his or her custody, and if not, what the proper disposition should be.” The justices found that the correct procedure in this and similar cases is for courts to determine if children can be safely returned to the custody of their custodial parent. To do so, a dispositional hearing should be held in which each parent is given the opportunity to demonstrate to the family court judge that the health and safety concerns that led to the removal of the children have been addressed and remedied.

CONNECTICUT

Court Inappropriately Applies New York 'Extreme Hardship' Standard

The Appellate Court of Connecticut held in Reichert v. Bronson (113 Conn.App. 757 (Conn.App. 4/21/09)) that the Superior Court, judicial district of Hartford, improperly applied New York law when it terminated maintenance for a parent adjudged an abuser on the basis of the payor's extreme hardship. The error was that the “extreme hardship” cited ' loss of income on account of having to care for the traumatized children, costs of their therapy, etc. ' was not documented or otherwise concretely established.

The Reichert case involved a mother who was initially granted custody of her children by a New York court and was awarded maintenance and child support. She was subsequently convicted of sexually abusing one of the children and custody was transferred to the children's father. The father had by this time moved from New York to Connecticut, in whose courts he sought modification of the maintenance order. After several years of wrangling, the Connecticut Superior Court terminated the father's maintenance obligation, saying he had proven his claim that, as a result of the mother's criminal actions, he had to give up his career as a national and international photographer to be available for his sons and care for them. This, the court found, constituted “extreme hardship” under New York Domestic Relations Law ' 236(B)(9)(b).

On appeal, the Appellate Court of Connecticut noted that the father's income had actually gone up following transfer of the custody of the children to him. This increased income came from his own earnings, from an inheritance and from the substantial contributions of his new wife to the household's income. In addition, although he complained that his children's therapy bills were substantial because of their mother's actions, he did not provide documentation to back up this claim. “At its essence,” concluded the court, “the plaintiff's argument before the trial court was that the transfer of custody, in and of itself, constituted extreme hardship. That proposition has been considered and rejected by New York courts.” See Harkavy v. Harkavy , 167 App.Div.2d 510 (1990).