Should Children of Divorce Dictate Parenting Arrangements?

children of divorce

In a sense, it appears to be somewhat of a rhetorical question. No one under the age of 18 should really be in charge of anything. Yet, it happens. Should children of divorce dictate parenting arrangements?

The reality comes down to a few things. For example, take teenaged boys and girls. Like it or not, mom and dad often rate second place. After all, they’re not only self-involved. They also find socializing with their friends far more interesting.

Even younger children of divorce wind up challenging parenting arrangements. For them, it means missing birthday parties of local friends. Or, perhaps, forgoing required sports practice or scheduled music lessons.

In best-case scenarios, mothers and fathers work out a strategy that allows easy access to both. That said, parental alienation presents as an issue for a number of children of divorce. While the intention might not be psychological abuse, it causes damage to relationships.

Custody and parenting time mediation prove beneficial for many divorcing parents. Without question, the ultimate goal focuses on the best interests of the children. For that reason, the court reviews all proposed agreements before incorporating them in the final judgment of divorce (FJOD).

Meanwhile, you could be faced with a frustrating situation. What happens if your child refuses to comply with court-ordered visitation?  Do you have any legal recourse?

Of course, all of this suggests careful evaluation. Do you suspect abuse as a reason your youngster balks at seeing the other parent? Or, do you believe the denial actually stems from the custodial mother or father’s wishes?   

If all this sounds all too familiar, you may be interested in how the court ruled in a case regarding these issues.

Children of Divorce: What’s in Their Best Interests?

At the end of last year, the New Jersey Appellate Division decided a case regarding parenting arrangements for two teenaged daughters.  The court elected not to publish this legal opinion as it does not represent new law. Nonetheless, it provides insight into how judges deal with these types of matters.

After thirteen years of marriage, the husband and wife separated in 2016. That same year, the couple negotiated a marital separation agreement (MSA). The MSA included parenting arrangements for their daughters, who are now 16 and 13 years old.

According to their agreement, both parents agreed to “legal custody” and would confer with one another on issues related to the children. The children lived with their mother, and the father was to enjoy planned time with them.

 In fact, a well-defined Parenting Time Schedule addressed several factors with great specificity.  For example, it considered what would happen if one of the parents didn’t see the children for ten consecutive days. Consequentially, that parent would be entitled to a midweek dinner with the two daughters.

Over a course of few months, the husband and wife amended various aspects of the MSA. Among other things, the amendment set up a three-week repeating cycle for the father’s visitation. Holidays and special events were defined as “periods of time that take precedence, but do not break the continuity of the parenting [time].”

From all appearances, the parents attempted to establish a protocol for all interactions with their children. The court accepted the MSA and incorporated it as part of the November 24, 2017 FJOD.

Father Claimed Mother Failed to Comply with Order

Five months after the divorce was finalized, the father filed a motion with the court. He sought the following relief:

1) Immediate award to him residential custody of the children pending a plenary hearing; 2) Restriction of the plaintiff’s contact with the children to “a supervised setting,” until otherwise ordered by the court;

3) Court directing the mother to undergo a psychiatric evaluation”; and

4) Requirement for the mother to adhere to “any recommendations” made by the psychiatrist, and “cooperat[ion] with a custody evaluation.”

What precipitated all this? According to the father, the mother was “deliberately” alienating his children’s affections for him.  He provided some examples and also asked the court to interview the children. The original motion did not seek emergent relief. Subsequently, the father filed an Order to Show Cause moving up the court hearing.

When the parents went to the court, the judge asked the father how often he saw his daughters. He said he only saw them a couple of times. One, was dinner at a public restaurant that lasted just an hour. The father claimed that he missed thirty-six parenting time days over the course of a few months.

According to the father, he attempted to speak with his ex-wife concerning the issue. Instead, she put his daughters on the phone to advise him that they weren’t going to visit with him. They went so far as to say that “they didn’t have to come if they didn’t want to.”

The father went to the police to advise of the issue. Not only didn’t the mother answer the father’s calls, she sometimes ignored the police. When she did answer, she advised the father that it was essentially his problem that the children didn’t want to visit with him.

Trial Court Hearing

During the hearing, the father’s attorney referenced a statement made by the judge during the divorce matter. Apparently, the Family Part judge cautioned both parents that “kids don’t make the decisions.”

Another issue came to light. Even before their divorce finalized, the parties agreed to co-parenting counseling and family therapy. Furthermore, the then-husband and wife both decided to follow the therapist’s recommendations.

The mother’s legal counsel addressed the “kids don’t make the decisions” remark from the bench. Admitting she did not represent the mother at the time, she claimed it was made when no testimony was taken. As far as the therapist, the mother said she followed the therapist’s recommendations.

In characterizing the situation as “a deteriorated relationship between dad and these girls,” the attorney agreed there was an issue that needed to be solved. The mother’s attorney wanted more time to present what she called “a balanced presentation of the facts.”

Meanwhile, the court wasn’t interested in prolonging the issue. Stating that he was about ready to transfer custody to the father, the judge ordered the parties back to the court the following day. (As it turns out, the parents had initially consented to the parenting agreement.) The judge didn’t want another year of violating consent orders.

From all appearances, part of the problem rested on the therapist, who did not submit reports. Although the mother asked the court to interview the children, the judge didn’t respond. Instead, the court said the children needed to follow the court order. The parents were then ordered to go into another room and “develop a mutually acceptable schedule that would gradually require the girls to have overnight parenting time with defendant.”

Children Could Experience Sanctions

Ultimately, the parties came to an understanding. The court wanted to ensure the children knew their responsibility to comply with the order. In fact, the court added sanctions that would apply to them if the failed to do so. More specifically, they would experience “loss of cell phone privileges, loss of internet privileges, loss of social media, loss of extracurricular activities, loss of travel.”

For whatever reason, neither of the parties ever submitted a typewritten order. The court ordered an additional hearing.  Ultimately, the mother’s attorney asked the treating therapist act as “reunification therapist.” However, the court gave reasons for the appointment of another therapist with specific instructions.

The judge referenced some admissions made by the mother. It seems the father took his daughters to a resort out of state. Not only did the mother travel to the same resort, she also exchanged 160 text messages with one of her daughters while she visited with her father.

As far as the court was concerned, it appeared the mother interfered with the father’s attempts to have a meaningful relationship with his daughters. Accordingly, the judge put the mother on notice concerning sanctions against her for non-compliance.

The parties returned to court another time. Ultimately, the mother appealed the new court orders for a few reasons. One was that the judge didn’t permit the teenaged daughters to express their point of view. Notably, the latter is discretionary.

On Appeal

The Appellate Division addressed multiple issues during the appeal. First, the appeals court criticized the informal manner of the proceedings. What about the opinions of the children?

During the proceedings, the judge emphasized that the daughters weren’t “going to drive the bus.” However, the Appellate Division pointed out that judges are not omnipotent. In fact, jurists have limitations.

As far as the court’s failure to interview the children, the Appellate Division found this to be reversible error. After all, the Legislature set up a number of factors when considering custody awards.  This includes “the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.”  In the end, it comes down to what is in the children’s best interests.

The case was remanded with reassignment to a different judge.

Contact Us

Children of divorce encounter their own set of issues. At the Law Offices of Sam Stoia, we strive to make things work going forward.  Contact us to schedule an appointment.

Should Children of Divorce Dictate Parenting Arrangements?