Time to End the Disparate Treatment of Non-Dissolution Custody Matters

By Gary N. Skoloff, Esq. & Thomas J. DeCataldo, Jr. Esq.

Custody and parenting time issues comprise a significant part of any family law practice. For practitioners handling these matters, the disputes often arise in the context of a broader divorce dispute.  However, in some instances, the parents of the child(ren) at issue never married.  In these settings, custody disputes do not proceed under a dissolution docket, but rather a separate proceeding known as the Non-Dissolution docket.  Although these disputes are governed by the same legal principles, the manner in which they are adjudicated differs in significant part.  Why is that?   Clearly, our courts endeavor to seek the same result in both settings, namely the establishment of a custody and parenting plan consistent with the best interests of the child(ren) at issue.  Why then, if each proceeding presents our family part judges with the same goal, do we have a non-dissolution and dissolution docket that differ so significantly?  It seems time to reconsider this disparate practice. 

In New Jersey, all custody and parenting time disputes are governed by statute. Specifically N.J.S.A. 9:2-4 provides our Courts with the various statutory factors that must be considered when making a finding relating to custody and parenting time.  The statute draws no distinction between married and unmarried families, stating:

“The Legislature finds and declares that it is in the public policy of this State to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.”  (emphasis supplied).  

The statute also explicitly provides a framework for the treatment of all custody disputes, regardless of whether the parents of the child(ren) at issue were married, providing that it applies “In any proceeding involving the custody of a minor child,” again drawing no distinction between a divorce and a non-dissolution proceeding.

With this in mind, it seems problematic that the adjudication of custody disputes under the same statute can differ so significantly, depending, quite arbitrarily, upon whether the parents made the decision to marry.  In 2014, the Appellate Division decided R.K. v. D.L., 434 N.J. Super. 113 (App. Div. 2014), a matter involving grandparent visitation, filed as a non-dissolution proceeding.  After the trial court treated the matter as a summary proceeding, the Appellate Division reversed and remanded, holding that although all Non-Dissolution matters were to be treated as a “summary proceedings” by Administrative Directive, there may be matters inappropriate for treatment as summary proceedings. Id.   In response to the Court’s decision, the Court Rules were amended in 2015 and R: 5:5-7(c) now provides that the Court may designate a matter as complex in “exceptional circumstances.”  However, the rule also provides that non-dissolution matters remain “presumed” to be non-complex, and should proceed in summary fashion.  Candidly, the marital status of a child’s parents should have no impact on the process applied to determine that child’s custodial arrangement.  Viewed differently, how can some custody disputes be complex and others capable of summary disposition?  Even with the progress derived from the adaptation of the 2015 rule amendments, we still see a disparate adjudication of custody disputes in non-dissolution cases every day.  Consider the current differences between the “FD non-dissolution docket,” and the “FM dissolution docket.”

Custody Disputes Addressed in a Divorce 

~~Custody and Parenting Time can only be ordered following a trial or plenary hearing, with the exception of pendente lite schedules put in place pending trial.

~~Pursuant to R. 5:5-1, parties are entitled to various measures of discovery, including depositions, subpoenas, and interrogatories.

~~Litigants are required to attend a Parent’s Education workshop and mandatory mediation provided by the Court at no cost.

Non-Dissolution Custody Matters “FD”

~~ Non-dissolution proceedings are presumed to be “summary” pursuant to R. 5:5-7(c), unless designated as complex in “exceptional circumstances.”  This means that a Court may make a determination as to custody any time there is a Court appearance, with or without allowing discovery or expert reports.

~~There is no right to discovery in a summary proceeding, and non-dissolution litigants are specifically exempted from the rights provided in R. 5:5-1. Discovery is permitted at the discretion of the Court.

~~Although R. 5:8-1 and 1:40-5 direct the Court to refer the case to mediation when custody of a child is at issue, this rarely happens in non-dissolution matters and parties are not offered an educational course.

Aside from the differences contained in the Court Rules, there is anecdotal evidence of non-dissolution custody matters proceeding in vastly disparate fashion than under the dissolution dockets.  Because there is no counterpart in FD matters to the entry of a Final Judgment of Divorce, which closes dissolution matters, many non-dissolution matters are closed administratively by the non-dissolution clerk’s office to be re-opened at a later date.  Under the current protocol in the Court Rules, a judge may decline to designate a matter as complex, and enter an order closing out the matter pending the completion of a custody evaluation, instructing the parties to resolve the case when the evaluation is complete or re-file a new application.  This situation would never happen in a dissolution matter and it leaves the parties without judicial oversight pending a final determination.  This practice can also lead to unintended and needless jurisdictional disputes if there are multiple states that might be able to assert jurisdiction, since there is no longer an active New Jersey proceeding. 

Non-dissolution litigants may also be administratively foreclosed from filing custody complaints if there is an ongoing domestic violence proceeding.  This is another example of a procedural hurdle that would not exist for married custody litigants proceeding in a dissolution matter.  In our view, this rule bestows too much authority upon the clerks’ office and creates the potential for abuse. For example, a litigant acting in bad faith could obtain a Temporary Restraining Order (“TRO”) on weak or inaccurate allegations during an ex parte hearing, thereby obtaining temporary custody pending a final hearing.  Now, over the course of the next several weeks while the TRO is pending, this litigant now enjoys custody, obtained through an ex parte TRO proceeding, while the other party not only can’t do anything about until the final hearing, they can’t even get before a Judge to address custody or parenting time!  This rule should not exist, and it does not exist in dissolution matters.  We need to have greater trust in our family party judges’ ability to confer and discuss when there are simultaneous proceedings.  Our judges can jointly determine whether custody should be addressed in the domestic violence hearing, or whether it may proceed simultaneously under a Non-Dissolution docket.  This should not be a decision made automatically by the clerk’s office and parties should not be barred from filing custody complaints because a TRO is in place.

As a final comment, Non-Dissolution matters are also routinely circulated among various different judges within the family part, often depending upon which judge is “covering the FD calendar” on a given day.  This can also occur when a matter is “administratively closed,” as described above, because it could be re-assigned to a new judge unfamiliar with the dispute when re-opened.  While some degree of judicial turnover is a necessary evil in our practice, it can be very frustrating for non-dissolution litigants in a contested custody action to be given the impression that any judge can jump into their dispute without any review of prior pleadings, and handle the matter on a given day.  Again, this would never occur in a dissolution proceeding and a matter would be rescheduled if the judge handling the divorce was unavailable on a given day. 

There is no question that many of these procedural differences exist in response to the tremendous volume of non-dissolution matters filed in our state, often by pro se litigants that may be unable to afford counsel.  However, the procedural differences between the FD and the FM docket inescapably result in the disparate treatment of custody disputes for unmarried litigants, which is unfair and arbitrary.  These procedural differences also create problems for practitioners, their clients, and the children at issue.  For one, clients turn to lawyers so that we can provide predictability as to what is likely to occur at Court.  Most practitioners can explain to their clients the procedure involved in litigating a custody dispute in a divorce.  This is much harder to do in a non-dissolution proceeding, because so much of how the case proceeds is subject to the discretion of the Court.  For example, the Court might decide to proceed in summary fashion, and not allow discovery, depending upon whether or not the Court decided to find exceptional circumstances and designate the case as complex.  We do not yet have an established body of law as to whether “summary” custody proceedings would be upheld on appeal if the parties’ requested a designation of complex and were denied the ability to conduct discovery.  We also do not yet know what constitutes exceptional circumstances, and the Court Rules do not endeavor to define the term, but arguably, a case should not become “exceptional” simply because the parties retained counsel, though this is often assumed by practitioners. 

The uncertainty as to how a custody case will proceed in a Non-Dissolution matters often means attorneys do not even know what they are showing up for when given a return date, let alone what may happen at the proceeding.  Is the return date a summary trial date? A case management conference? A motion hearing?  Will there be testimony? Cross-Examination?  This great uncertainty deprives attorneys of predictability of process, thereby denying us the ability to counsel our clients effectively.  This not only makes attorneys look bad, but it also promotes skepticism from the parties and can lead to mistrust of the judicial process.

It is beyond the purview of this blog to propose a solution to these problems, but it is clear that we currently have a system in place that treats the children of married and unmarried families differently.  We should strive to do better.

-Gary N. Skoloff, Esq. and Thomas J. DeCataldo, Jr. Esq./Skoloff and Wolfe, P.C.