NJ & CT News

NEW JERSEY

Plenary Hearing Required For Custody Change

The Superior Court of New Jersey, Appellate Division has reversed a change of custody determination in the case of Atherholt v. Hunter, 2013 N.J. Super. Unpub. LEXIS 111 (2013), because the judge who issued the order failed to follow appropriate procedures. The father had sought a change of primary residential custody from the mother's home in New Jersey to his home in Delaware. The trial court ordered the parties to submit to mediation on the issue, but it was not successful, so the father moved once more for custody.

A new judge denied that motion, finding no evidence supporting a change of custody at that time. That judge also ordered the parents to attend a custody neutral assessment (CNA), but did not set a date for a future hearing once the CNA report was completed. This was contrary to Rule 5:8-6, which requires the court to set a hearing date within six months after the last responsive pleading where the custody of children is a genuine and substantial issue. When the CNA report was submitted, the father sought its review, which the court held in the presence of both parties. The judge made clear at that hearing that he was not going to consider a change of custody at that time, but would hold a plenary hearing if the parties again could not agree. They continued to be unable to agree.

Both parents did consent to the judge's conducting a private discussion with their then-14-year-old son, however, and that interview took place on April 20, 2012. On that day the boy expressed his wish to live with his father. On that same day the judge informally questioned the parents, who were there without counsel, then issued an order changing residential custody to the father. The mother appealed, arguing, inter alia, that she had been denied a chance to conduct discovery, and that a proper hearing should have been held in which she could have presented her evidence and attempted to rebut the father's evidence.

The appeals court agreed with the mother, noting that when there is a substantial dispute regarding a child's welfare a plenary hearing is required in New Jersey. Mackowski v. Mackowski, 317 N.J. Super 8 (App. Div. 1998) (requiring a plenary hearing where the teenaged child expressed preference to live with her father). The Appellate Division concluded that
“[w]hat occurred on April 20, 2012 did not even remotely resemble a plenary hearing. It was nothing more than an informal inquisition of two pro se parties. ' Accordingly, we reverse and remand for a plenary hearing before a different judge.”

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No Court-Appointed Counsel for Indigent Civil Domestic Violence Litigants

In a case decided on Jan. 24, the Appellate Division has held that indigent litigants defending or presenting civil domestic violence claims are not entitled to appointed counsel, because the remedies available are curative, not punitive in nature. In D.N. v. K.M., A-3021-11T3, A-3022-11T3, a trial court had found that D.N., who was not represented by counsel, was guilty of harassing K.M., the father of her child, whose custody was then in dispute. D.N. had also accused K.M. of domestic abuse, but the court found insufficient evidence of that claim. On appeal, D.M. asserted that counsel should have been appointed to assist her. The appeals court noted, however, that due process issues arise only in criminal matters or when the outcome of a civil matter could include serious consequences, such as the remedy of incarceration when a person fails to pay child support. The types of relief available under N.J.S.A. 2C:25-29b, however, were remedial, and designed to protect the victim ' for example, stay-away orders, orders to attend counseling programs or limits on the right to purchase firearms. Fines and incarceration could not be ordered. Thus, D.N. was not entitled to court-appointed counsel.

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CONNECTICUT

Attorney Fee Award Not Mandatory in Child Support Action

The Appellate Court of Connecticut has confirmed a trail court's determination that a woman who brought an action to establish the paternity of her then-13-year-old child should not be awarded attorney fees, as the father had acknowledged paternity previous to the court action. Colbert v. Carr, 140 Conn. App. 229 (2013). It did not matter to the appeals court that the woman had brought her claim pursuant to Conn. Gen. Stat. ' 46b-160, styling it as an action to establish paternity; because the father had acknowledged paternity at the time of the child's birth, and had been paying child support since then, the real issues to be determined were child support and retroactive support. The statutes pertaining to support issues were therefore brought into play, rather than those having to do with establishment of paternity and, unlike the paternity statutes, Connecticut child support statutes do not provide for mandatory award of attorney fees to the petitioner. Thus, the trial court had discretion to award or not to award attorney fees, and no abuse of discretion was shown.

NEW JERSEY

Plenary Hearing Required For Custody Change

The Superior Court of New Jersey, Appellate Division has reversed a change of custody determination in the case of Atherholt v. Hunter, 2013 N.J. Super. Unpub. LEXIS 111 (2013), because the judge who issued the order failed to follow appropriate procedures. The father had sought a change of primary residential custody from the mother's home in New Jersey to his home in Delaware. The trial court ordered the parties to submit to mediation on the issue, but it was not successful, so the father moved once more for custody.

A new judge denied that motion, finding no evidence supporting a change of custody at that time. That judge also ordered the parents to attend a custody neutral assessment (CNA), but did not set a date for a future hearing once the CNA report was completed. This was contrary to Rule 5:8-6, which requires the court to set a hearing date within six months after the last responsive pleading where the custody of children is a genuine and substantial issue. When the CNA report was submitted, the father sought its review, which the court held in the presence of both parties. The judge made clear at that hearing that he was not going to consider a change of custody at that time, but would hold a plenary hearing if the parties again could not agree. They continued to be unable to agree.

Both parents did consent to the judge's conducting a private discussion with their then-14-year-old son, however, and that interview took place on April 20, 2012. On that day the boy expressed his wish to live with his father. On that same day the judge informally questioned the parents, who were there without counsel, then issued an order changing residential custody to the father. The mother appealed, arguing, inter alia, that she had been denied a chance to conduct discovery, and that a proper hearing should have been held in which she could have presented her evidence and attempted to rebut the father's evidence.

The appeals court agreed with the mother, noting that when there is a substantial dispute regarding a child's welfare a plenary hearing is required in New Jersey. Mackowski v. Mackowski, 317 N.J. Super 8 (App. Div. 1998) (requiring a plenary hearing where the teenaged child expressed preference to live with her father). The Appellate Division concluded that
“[w]hat occurred on April 20, 2012 did not even remotely resemble a plenary hearing. It was nothing more than an informal inquisition of two pro se parties. ' Accordingly, we reverse and remand for a plenary hearing before a different judge.”

'

No Court-Appointed Counsel for Indigent Civil Domestic Violence Litigants

In a case decided on Jan. 24, the Appellate Division has held that indigent litigants defending or presenting civil domestic violence claims are not entitled to appointed counsel, because the remedies available are curative, not punitive in nature. In D.N. v. K.M., A-3021-11T3, A-3022-11T3, a trial court had found that D.N., who was not represented by counsel, was guilty of harassing K.M., the father of her child, whose custody was then in dispute. D.N. had also accused K.M. of domestic abuse, but the court found insufficient evidence of that claim. On appeal, D.M. asserted that counsel should have been appointed to assist her. The appeals court noted, however, that due process issues arise only in criminal matters or when the outcome of a civil matter could include serious consequences, such as the remedy of incarceration when a person fails to pay child support. The types of relief available under N.J.S.A. 2C:25-29b, however, were remedial, and designed to protect the victim ' for example, stay-away orders, orders to attend counseling programs or limits on the right to purchase firearms. Fines and incarceration could not be ordered. Thus, D.N. was not entitled to court-appointed counsel.

'

CONNECTICUT

Attorney Fee Award Not Mandatory in Child Support Action

The Appellate Court of Connecticut has confirmed a trail court's determination that a woman who brought an action to establish the paternity of her then-13-year-old child should not be awarded attorney fees, as the father had acknowledged paternity previous to the court action. Colbert v. Carr , 140 Conn. App. 229 (2013). It did not matter to the appeals court that the woman had brought her claim pursuant to Conn. Gen. Stat. ' 46b-160, styling it as an action to establish paternity; because the father had acknowledged paternity at the time of the child's birth, and had been paying child support since then, the real issues to be determined were child support and retroactive support. The statutes pertaining to support issues were therefore brought into play, rather than those having to do with establishment of paternity and, unlike the paternity statutes, Connecticut child support statutes do not provide for mandatory award of attorney fees to the petitioner. Thus, the trial court had discretion to award or not to award attorney fees, and no abuse of discretion was shown.