RONALD J. HERMAN reports on a recent New Jersey Case, in which the Plaintiff-mother is currently serving a forty-year sentence for the 2010 murder of her two children’s father. The children, who were seven years old at the time of the murder, heard gunshots in their house and entered their father’s bedroom to see him dying.
Following the murder, the children were placed with the Defendant, the children’s paternal grandmother. A trial ensued regarding the custody of the children. During the proceedings, the court ordered an evaluation of the children by a psychologist who was jointly selected by the parties. At the evaluation, the children expressed no desire to see their mother. Furthermore, the children had been undergoing therapy for the trauma they incurred from the murder. Consequently, an expert concluded that visitation between the children and their mother would be harmful for the children. After considering the testimony and evidence from both parties, the trial court awarded the Defendant custody and guardianship of the children.
Four years later, the Plaintiff-mother filed an additional motion seeking an evaluation of the children. The trial judge denied the motion without a hearing because the Plaintiff did not show any changed circumstances to justify another evaluation. The Plaintiff-mother appealed the trial court’s decision.
The Appellate Division agreed with the trial court and indicated that the Plaintiff-mother’s request for the appointment of an expert must be viewed in light of the well-established standard for modifying orders that establish custody and parenting rights. Custody orders are subject to revision based on the changed circumstances standard. First, a party must show a change of circumstances warranting modification of custodial agreements. If the party makes that showing, the party is entitled to a plenary hearing as to disputed material facts regarding the child’s best interests, and whether those best interests are served by modification of the existing custody order.
In affirming the trial court’s decision, the Appellate Court found that the Plaintiff-mother alleged no facts suggesting a change in circumstances warranting modification of the current custody arrangement. Query: what facts would ever be available to the Plaintiff mother serving a 40-year prison sentence? Her request for the appointment of another expert to examine the children was only based on her dissatisfaction with the court’s prior order.
Should you have any questions concerning your parenting time, custody or other family law rights, please contact Ronald J. Herman, Esq.