Einhorn Attorneys Co-Author New Jersey Law Journal Article on Why Pendente Lite Custody Decisions that Rely on a Presumptive 50/50 Schedule and Hearsay Expert Reports Need to End

Family court is often the “wild west,” and matters can take years to resolve, as the authors of “Reminder: Court Rules and Statutes Apply to Pendente Lite Custody Decisions” state, as published in the New Jersey Law Journal.  Pendente lite custody decisions are, by definition, temporary, but in practice they can detrimentally impact a case. This is because courts fail to adhere to statutes and rules in making these pendente lite custody decisions. Co-authors Matheu D. Nunn, Matthew S. Coleman, Angelica M. Mercado, and Alyssa Engleberg Nunn note that as a result, pendente lite custody decisions can force children into an improper arrangement based on a misapplication of law.

The article discussed decisions in the past year in which judges have made pendente lite custody decisions that have been “influenced by the misguided notion that New Jersey is a ‘presumptive’ 50/50 custody state or guided by hearsay expert reports that are not subject to discovery or cross-examination.”

While courts do have the authority to grant pendente lite custody arrangements, there is no presumptive 50/50 custody, and trial courts are instead expected to make such determinations “based upon the best interests of the child with due regard to the caretaking arrangement that previously existed.” The authors note that this “misapplication of law” wrongly considers there is a presumption of 50/50 physical custody. Moreover, once these pendente lite decisions are made, they can create arrangements that not only fail to consider the best interests standard but also have the potential to last or be seen as the status quo as the case can take years winding its way through the Family Part.

In addition, the authors discuss cases where judges have relied on hearsay “in the form of letters from teachers, pediatricians, therapists, and/or—perhaps worse—in the form of court-appointed or partisan custody expert reports.” Expert reports—whether court-appointed or partisan—are not “in the court record” prior to trial, and their contents are not of the type of information subject to judicial notice under state regulations. Accordingly, reliance on these reports in a pendente lite motion is improper.

The Rules of Court will allow expert reports, but subject to the rules of evidence, with depositions and cross-examination.

The authors urge the Appellate Division to address these pendente lite decisions and publish a decision that reaffirms applicable law, to:

1. afford litigants the “due regard” given to the “caretaking arrangement that previously existed,”
2. treat expert reports appended to Certifications as hearsay that do not fall within any of the statutory exceptions, and
3. rely on a level of due process, subject to the rules of discovery and cross-examination of reports admitted in evidence.

Nunn chairs Einhorn Barbarito’s Family/Matrimonial Practice and Appellate Practice and represents individuals from all fields – including athletes, business owners, entertainers, executives, lawyers, physicians, police officers and teachers – in family law matters.

Coleman and Mercado are members of the firm’s Family/Matrimonial Practice and work with clients on a variety of high-stakes family law issues and matrimonial law matters, including divorce and child custody disputes.

Alyssa Engleberg Nunn is a Partner with Hagan, Weisberg & Nunn.

You can read the full article here. (Subscription may be required.)