Edward R. Weinstein, Esq.

Is A “Right of First Refusal” Automatic For Parenting Time In New Jersey?

No. As seasoned parenting time lawyers, the attorneys at our law firm appreciate that while most New Jersey Family Court judges prefer to grant a parent the right of first refusal, the court’s decision shall always be driven by the best interests of the child. In other words, if one parent cannot be with the child and the other parent is available, then that parent should have the right to spend time with their child before the child went to a third party such as a babysitter or daycare. However, if a New Jersey family Court finds that the child is not best served in such a scenario, the right of first refusal shall be denied. Of significant note, if the child’s parents are constantly fighting, this could cause a judge to limit their interactions. The case below contains similar facts as well as the court’s reasoning for denying the argument of right of first refusal in this instance.

In Ferrer v. Durkin, ex-husband Joseph Durkin appealed from an order of the Superior Court of New Jersey, Family Part of Camden County which was entered after a plenary hearing on December 16, 2015, that denied his request for more parenting time. On appeal, the New Jersey Appellate Division found that Judged Shusted, the Family Part judge, correctly applied the law to the specific circumstances of the case as he found them after hearing testimony, and affirmed the decision of the Family Part of Camden County.

Joseph Durkin and Mariel Miralles Ferrer got married in 1999, and had two children together, a nine-year old girl and an eleven-year old boy. They got divorced after fifteen years of marriage. In a parenting plan order dated, April 2, 2015, the parents agreed to an equal fifty/ fifty split of shared parenting time. However, the parents were not able to agree upon a vacation schedule, or on Joseph’s insistence that he should be given the right of first refusal if Mariel is not able to take care of the children during her allotted parenting time. As such, the Family Part conducted a hearing limited to only those issues, over the course of eight days. During the hearings, the Family Part heard testimony from three witnesses, both Joseph and Mariel, and Mariel’s mother.

On appeal, Joseph’s issue was limited to whether he should have been awarded additional parenting time when Mariel was at work and not personally able to look after the kids during her parenting time. As such, the New Jersey Appellate Division limited their review to only that specific issue.

After getting divorced, Joseph stayed in the marital home, which was located in Haddonfield, and Mariel moved to Cherry Hill, two miles away. They currently live only seven minutes away from one another. The children went to a public located in Haddonfield.

Mariel worked as a charge nurse at New Jersey State’s developmental center in New Lisbon. Usually, she worked weekdays from 7:00 a.m. to 3:30 p.m. She would leave her home at 6:15 a.m. when the children were still sleeping. Joseph owned and operated a Mister Softee franchise that he managed from home most days.

When Mariel was at work or unable to care for the children for any other reason during her parenting time, she had her parents or Joseph’s sister to watch the children. During the summer time she would enroll the kids in day camp. Joseph described himself as a stay at home father. Because of his liberal work schedule, he rarely needed to rely on anyone else’s help to watch the children during his parenting time. On cross-examination, he admitted that was also available to take care of the children during the marriage, but the parents still sent the kids to daycare for the benefit of socialization that it provided.

The New Jersey Appellate Division stated that a review of the factual record clearly revealed that the relationship between the parents was angry and bitter. They both filed domestic violence complaints against each other that they later dismissed in favor of civil restraints on the entry of their April 2015 parenting plan. While Judge Shusted found that both Joseph and Mariel were good parents and devoted to their children, the parents still did not speak to each other and could not agree on relatively minor scheduling issues. Judge Shusted found that the reason for that volatility rested largely with Joseph, who Judge Shusted found “made no effort at compromise.”

The judge stated that there were numerous days of hearings because of Joseph’s actions, who tried to turn the hearings, as the judge put it, “into a personal crusade to assassinate the character of his ex-wife.” Joseph had adopted a trial strategy of trying to shake his ex-wife’s composure and acted in an intimidating fashion towards her. His demeanor in court was characterized by the judge as rude and interrupting. Moreover, Mariel was fed up with all the money she had to spend on all these hearings, in addition to the time she had to spend in court for the limited issue that was actually being tried, which was only parenting time during summer recess and school breaks.

Furthermore, Judge Shusted did not find any supporting case law for Joseph’s main argument, that as the biological father, he had priority over his in-laws and his own sister, when his ex-wife needed on of them to help her take care of the children during her parenting time. Judge Shusted applied the best interest of the child standard enumerated in New Jersey Statute 9:2-4(c), and he concluded that Joseph was not entitled to additional parenting time because he lived a close walking distance away from the elementary school. The judge found that the parent’s inability to communicate, cooperate, or agree about the children, and to a lesser extent, the importance for the children to maintain a healthy relationship with their maternal grandparents, took precedent over any other factors, and mitigated against Joseph’s requested relief. Joseph appealed the decision.

On appeal, Joseph admitted that there was no established case precedent for his requested relief – the right of first refusal. He argued that Judge Shusted did not correctly apply the best interests standard, and that it was actually in the children’s best interest to be with him, their father, when his ex-wife was at work and not available to take care of them. He claimed that the judge’s ruling that Mariel has to have equal parenting time regardless of if it was her, an in-law, a babysitter or a day camp did not reasonably apply the best interests standard to the facts presented by this specific case.

The New Jersey Appellate Division found that Joseph’s contention that the Family Part judge did not properly apply the best interest of the child standard was in reality a quarrel he had with the judge’s fact finding, which the appellate panel stated they were in no position to reject. The New Jersey Appellate Division explained that they give significant deference to the factual findings made by a Family Part judge, and these findings are binding on appeal as long as they are supported by substantial, adequate, and credible evidence. Judicial deference to the Family Part is especially warranted when the majority of the evidence is testimony and involves credibility determinations. Unlike an appellate panel, a Family Part judge gets to see witnesses firsthand and experiences a feel of the case that can never be duplicated on appeal. Additional deference is given to the Family Part’s factual findings because Family Part judges have a special expertise in family law matters. The New Jersey Appellate Division does not second guess the exercise of a Family Part judge’s sound discretion, and will not change the factual findings and the legal conclusions that stem from them, unless the appellate panel is convinced that the same factual findings and legal conclusions are so clearly unsupported by or inconsistent with the relevant, competent and reasonably credible evidence that they offend the interests of justice.

After reviewing the factual record, the New Jersey Appellate Division stated that the Family Part judge did not abuse his discretion when he refused Joseph’s request to order Mariel to go to him first when she was not personally available to take care of the children during her parenting time. The appellate panel found that such a right of first refusal arrangement would have to depend on mutual cooperation and a high level of respect that the parents simply did not have. Ordering a right of first refusal in this case, over the mother’s objections, would likely have a negative effect on an already overly contentions co-parenting arrangement. The New Jersey Appellate Division found no reason to question the Family Part’s careful and thoughtful analysis and affirmed the order.

Our law firm stands prepared to help you or a loved one facing a problem with parenting time and their children.