You can always count on the Center for Disease Control and Prevention (CDC) for statistics that might or might not surprise you. In 2017, unmarried mothers delivered over a third of the babies born in NJ. That said, parental rights apply to both moms and dads. So, what happens when it comes to never married parents and custody?
In the first place, you should know that the family courts maintain two separate dockets when it comes to child custody. Marital dissolution or divorce case docket numbers are marked with an “FM.” Meanwhile, with limited exceptions, non-dissolution actions receive a designation of “FD” as part of their docket identification.
Never married and not sure how custody works as far the law? Experienced family law attorneys provide legal advocacy for parents regardless of their marital status. Of course, this also includes prospective issues establishing legal paternity, child support and parenting time.
Cases on the FD docket traditionally move more expeditiously than those with the FM designation. Without question, divorce often involves other issues that can become complicated and require extra attention.
In the meantime, that’s not to say that disputes bearing the FD docket can’t be complex. Earlier this year, the New Jersey Appellate Division reported a case that serves as a reminder of that very issue.
Plenary Hearing Ordered in Custody Matter
The New Jersey Appellate Division decided J.G. v. J.H. on January 2, 2019. The court used the parties’ initials to protect their identities. J.G. is the mother and referred to as Jane in the legal decision. The father’s name is Joseph.
When Jane gave birth to the parties’ son John in 2012, the couple were unmarried. However, a court mandate establishing custody or a parenting plan was not filed until 2014. At that time, the court executed an order under an FD docket number.
According to the 2014 order, Jane and Joseph consented to joint legal custody of their child. Although Jane was designated as the primary residential parent, the order also gave generous parenting time to Joseph.
A year later, the parents attempted to reconcile, and the consent order was vacated. The parents agreed to share parenting time, although John continued to primarily reside with his mother.
The reconciliation did not last, and Jane moved on to a new relationship. At some point, she became engaged and pregnant with another child.
Meanwhile, Joseph expressed apprehension about Jane’s fiancé, who he described as a "well-known drug user" and "convicted felon with multiple prison sentences."
When Jane left John alone with her fiancé on October 3, 2017, Joseph went to court the very next day. He filed an order to show cause requesting sole custody of the child, using the original FD docket number.
You may or may not know that orders to show cause represent emergent applications. Joseph’s legal paperwork contained allegations regarding threatening behavior and drug use. Nonetheless, the court denied the order to show cause without “actual imminent threat of harm.”
In denying the application, the court indicated that the basis of the action included “uncorroborated statements. . . limited evidence . . . and such speculative harm." At the same time, the court granted Joseph temporary sole physical custody, citing the potential for physical violence that could impact the child.
Jane could arrange for parenting time, provided that her mother supervised the visits outside Jane’s home.
In response to Joseph’s order to show cause, Jane filed one of her own. She cited concerns that the four-year-old would suffer harm because of “his abrupt separation from her.” The judge denied Jane’s application as non-emergent.
Order to Show Cause Appearance
It wasn’t until October 24, 2017, that the parents had a day in court. Jane showed up with her attorney and Joseph was alone. Meanwhile, the judge was not the same one who granted Joseph temporary sole physical custody.
The hearing was for the return of Joseph’s original order to show cause. The judge placed both the mother and father under oath and started to ask questions. Meanwhile, the answers were contradictory as far as establishing facts about the child’s welfare.
In the meantime, Jane’s attorney requested that the matter be moved to a complex track. However, the judge cited the FD docket number and disagreed. It seemed the judge felt that only divorces (or FM matters) should be on complex tracks.
The reality is that docket numbers should not matter when it comes to custody disputes. Guidelines exist when it comes to child custody and parenting time. For example, the courts recognize the value of investigation reports.
The best interests of children remain paramount in all custody decisions. In this case, the judge seemingly neglected protocol in establishing what really represented John’s best interests. Instead, the court summarily decided to order joint legal and physical custody.
Along with other directives, the court order awarded John primary residential custody. The court offered one reason for making the decision. The child had already been uprooted.
Jane appealed the trial court order. Custody matters suggest the need for mediation. When parents can’t resolve their issues, the law requires the submittal of a Custody and Parenting Time/Visitation Plan. Neither of these occurred in this matter.
The bottom line is that just because a case has an FD docket number doesn’t mean the procedural rules should be ignored. The court’s denial of placing this matter on a complex track was inappropriate. After all, the judge only explanation was that it was not a divorce case.
The court acknowledged that the parties offered conflicting representations of fact. This necessitated the need for a plenary hearing in this contested custody matter.
In the meantime, the Appellate Division made something clear. The hearing conducted in October of 2017 did not represent a plenary hearing. For one, the judge did not allow Jane’s counsel to participate properly. There was no exchange of discovery, witness testimony or input from expert witnesses. Additionally, cross-examination did not occur.
The court remanded the case to the trial court with specific instructions that it go to a different judge.