Case Law Category Archives — Page 3 of 3 — New Jersey Divorce Lawyers Blog Published by Monmouth County NJ Family Lawyers

Many people in the midst of a divorce or imminent divorce proceeding find themselves involved in a situation involving domestic violence with their spouse. If you are granted a restraining order in New Jersey, you may wonder how that might effect the issue of custody in your divorce. Or, if you are the defendant in a domestic violence case that now has a restraining order entered against you, you may wonder how this may affect the ultimate issue of custody of your minor children.

Unlike issues of support or equitable distribution involved in a typical New Jersey divorce case, the issue of custody of one’s children in many instances can prove to be the most important and difficult to resolve. The existence of a final restraining order raises other concerns that can impact the issue of custody of your minor children.

In New Jersey, a trial court determines the issue of custody of minor children based upon a standard known as “the best interest of the child”. To many, this can be a very illusive standard. There is much case law in New Jersey that attempts to define this standard.

Once that determination as to the custody has been made by a court, or by consent of the parties if they can agree, it may still be changed in the future. Certain factors must be met in order to succeed in changing custody. Generally speaking, if the other parent voluntarily consents to the change, it will in most instances, be permitted by the court. If the other parent does not agree to the proposed change in custody, an application (referred to as a “motion”) must be filed to commence the process in the family court in New Jersey.

An application to modify custody requires a two-step process. The first step requires the moving party to show a “change of circumstances” as a threshold to allow discovery and an evidentiary hearing or trial. The second step is the hearing or trial itself in which the court will apply the same standard that would have applied at the time of the original custody determination. The paramount consideration in all child custody cases is to determine “what is in the best interest of the child?. ”

In a case decided on July 30, 2014, Viso vs. Viso, the Appellate Division rejected an appeal to modify the court order which denied the supporting spouse’s obligation to terminate or modify his support obligations. In this instance, the parties’ were divorced in December 2007 and memorialized their agreement in a property settlement agreement which the court incorporated into their final judgment of divorce.

Approximately four and a half years later the Plaintiff, the supporting spouse, filed a motion to modify his support obligations asserting that his financial circumstances had changed, his income had decreased, and that the defendant, the supported spouse, had increased income. His motion was denied by the trial court.

In New Jersey, a court may modify support if there is a showing of changed circumstances. Those changed circumstances can include an increase or decrease in a supporting spouse’s income. It may also include an increase in the supported spouse’s income as well as subsequent employment by the dependent spouse. The party who seeks to modify the support amount has the burden of proof.

Articles Posted in Case Law

Determining Custody After a Domestic Violence Trial in Which a Final Restraining Order is Entered in New Jersey

How do I Oppose a Motion to Terminate Or Modify a Support Obligation in New Jersey?