Less is More: What You Don’t Need for Custody Disputes

There is a notion among many family law practitioners that an expert is necessary in any custody dispute, and that notion simply does not jibe with the realities of today or the law on custody. Many clients who have legitimate custody issues simply cannot afford both an attorney and an expert, and in the end, what is that expert really going to provide you?

Sometimes, the simplest solution is the right solution. Anyone involved in a custody or parenting time dispute should consider keeping it simple, which may be more effective.

1. You don’t Need an Expert

Expert testimony is governed by New Jersey’s Rules of Evidence, which only permits such testimony “[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” Any parent should know that there is no such thing as a parenting expert. That’s wonderful that you have a trick to help your toddler sleep through the night, but that trick only riles mine up.  And I’m glad you found a way to motivate your 8-year-old to eat more than chicken fingers and French fries, but my child isn’t motivated in that way.  At a basic level, the thought that someone could be an “expert” on parenting should offend us way more than it does (and I say that with all due respect to those who serve as experts, whom I like and think do a very nice job).  What scientific, technical or other specialized knowledge can they provide that will actually assist the trier of fact in most cases?

When a Judge needs to determine custody, they look at factors set out by our statute.  Those factors confirm that expert testimony is largely unnecessary. Parents, not an expert, will be able to offer the most compelling testimony on each party’s ability to agree, communicate and cooperate, and can provide specific examples of willingness to accept custody or unwillingness to allow parenting time.  Your testimony is far more compelling as to the child’s relationship with parents and siblings than an expert’s brief observations in controlled environments. You (or actual witnesses) are the only party who can testify with personal knowledge as to any history of domestic violence and the safety of the child and parent from physical abuse. You can also provide far more specialized and child-specific testimony about the needs of each individual child, the stability of the home environment offered and the quality and continuity of the child’s education. Only parents who spend extended time with their children can provide specific examples that substantiate evidence regarding the quality of time spent with the child prior to or after the separation and each parent’s employment responsibilities.

There are two factors where an expert may be useful: when the preference of the child may be the decision-maker, and the “fitness of the parents.” Our new statute requires a court to consider any evaluations that are administered by professionals when considering fitness.  At the same time, our custody statute provides a caveat about fitness: a parent shall not be deemed unfit unless the parent’s conduct has a substantial adverse effect on the child. Many times, fitness of the parents should either:

• Not be at issue, no matter how much your client hates their spouse or
• Is obvious, such as in circumstances where someone has a serious drug or alcohol addiction.

Only in those borderline cases would the fitness of the parents require an expert.

The best time to get an expert may be when the preference of the child should play an outsized factor. Your child is not going to testify, and the expert’s decision may effectively serve as an end-run around rules that prevent a non-testifying witness’s statements from coming in. At the same time, given our new custody statute’s emphasis on child preference, this may change the dynamic where a child’s preference can be provided to the court even without an expert.  Given how new the statute is, this is an issue that still needs to be litigated and determined, but to the extent your judge does not allow your child’s preference in without an expert, that expert may be necessary.

In short, expert testimony is expensive and may not be worth the cost involved. If you’re relying on an expert to prove your case, perhaps consider whether you have the evidence needed in the first place.

2. The Alienated Parent Does Not Help You in Relocation Cases

If your case involves an effort to relocate out of state, courts still determine this application by considering what is in the best interests of the child. Parents who wish to relocate arguably start at a disadvantage: common sense should tell us it makes the most sense for two parents who want to be involved in the lives of their children to live close nearby (although that common sense can frequently be rebutted by the facts of your case).

Ultimately, when it comes to relocation, research suggests children who relocate are more likely to be successful if the relocating parent had an effective parenting style that did not marginalize the non-moving parent. Relocation plans that demonstrate the child has a close relationship with the non-moving parent and reflect many avenues to ensure continuing contact between the child and non-moving parent are more likely to result in successful relocations.

Thus, when you want to relocate, painting the other parent as uninvolved or uncaring is often not a winning strategy. While it can be effective, the more effective strategy would be to demonstrate the non-moving parent already has a strong bond with the child(ren), which will not be significantly hampered by the move, and that the moving parent will make all efforts to deepen that bond rather than hamper same.

3. You May Not Need a Plenary Hearing (Trial)

While custody determinations are always subject to modification based on a change in circumstances, subsequent modifications do not always require a hearing.  We have discussed on this blog before the case of Cardali v. Cardali, a case in which Cohen Seglias’ Family Law Chair Carolyn Daly successfully argued before the Supreme Court.  While that case dealt with alimony and cohabitation, and not custody, it set forth a procedure that litigants and their attorneys should advocate for in any post-judgment (post-divorce) application for change.  If a court determines that there is a change in circumstances, it should order limited discovery to allow both parties to investigate the claim of a change.  Then, the litigants should address the discovery with the court through Certifications – sworn statements.  The court can then determine if there is a “material fact” in dispute.  If there is not, it can simply order relief (either a change or, in some cases, a determination that the discovery revealed there actually was no change) without the need for a hearing. Proceeding under the Cardali framework saves both time and expense and can help reach a swifter resolution of issues.

A Practical Approach

In custody disputes, more is not always better. Strong, specific facts—presented clearly and strategically—often carry more weight than costly add-ons.

Focusing on what truly matters can reduce expenses, streamline the process, and lead to better outcomes for both parents and children.  Our Family Law team works with you every step of the way to determine the best way to reach the desired outcome for you and your family.  If you need assistance with your dispute, contact our team today.