When I first began my career as a divorce and family lawyer in 1996 in my hometown of East Brunswick, New Jersey, I quickly understood that the credibility of my client in the eyes of a judge of the Family Part of the Superior Court of New Jersey was essential. To that end, as we have all watched the technology explosion dramatically change the way we live our day-to-day lives, both attorneys and judges alike now have a flood of hard evidence right there on everyone’s smartphones and the like.
In fact, a vast majority of evidence entered into family law trials in the state of New Jersey are either text messages or Facebook posts. In a recent case, the mother of a child moved for sole custody alleging the child would be in danger if left alone with the father. However, hard evidence demonstrated that the mother repeatedly text the father, on the very same weekend that she was drafting her ex parte Order to Show Cause, repeatedly asking him to watch their child. Needless to say, this parent’s credibility was shattered and her request for sole custody was denied. Following please find a detailed analysis of this case that is a great example of credibility being king in a courtroom.
In L.J.L v. L.G., mother L.J.L. appealed from an order of the Superior Court of New Jersey, Family Part of Bergen County, dated May 19, 2015 that denied her motion to reconsider the Family Part judge’s September 14, 2014 decision. The Family Part judge vacated a July 23, 2014 ex parte order in that decision that temporarily granted L.J.L. sole legal custody of the children.
L.J.L. and L.G. started dating in 2004, and had a daughter together in 2006. After their relationship ended, the parents entered into three written parenting time and custody agreements. In the May 2, 2011 agreement, the most recent one, the parents agreed that they would both share joint physical and legal custody of their child, and each parent would have equal parenting time. As such, the parents also agreed that neither parent would have to pay the other parent child support.
L.J.L filed an ex parte application for an order to show cause with temporary restraints with the Family Part on July 23, 2014. In this application, she stated that in April 2013, L.G. had been charged with assaulting his seventy year old neighbor in a dispute about removing decorative stones from the yard. After a bench trial, L.G. was convicted of third degree aggravated assault. A trial judge sentenced him to two years of probation on July 18, 2014, and ordered him to take part in an anger management program and to submit to a mental health screening and follow any recommendations from the same.
L.J.L claimed that this conviction showed that L.G. conducted himself in bizarre and unnecessarily violent way. She also gave the judge about fifty pages of police reports, dating back as far as 1998. These police reports related to public arguments and disputes that L.G. had with neighbors, business owners and others. However, the majority of these police incident reports happened before the May 2011 parenting time agreement. L.J.L. further claimed that L.G. had a prior history of anger and domestic violence when they were dating. While she admitted that none of these incidents involved the child in any way, she contended that her former partner’s conviction rendered him unfit to still have unsupervised parenting time with the child. Moreover, she stated that she felt incredibly uncomfortable when the child stayed with L.G., because of his uncontrollable anger and history of abuse.
Because of L.J.L.’s claim that it would be dangerous to continue to allow L.G. to have unsupervised parenting time, the judge found it reasonable to grant her request. As a result, the Family Part Judge awarded her sole physical and legal custody of the child depending on the return date of the hearing, and L.G. would only have supervised parenting time until then.
Unbeknownst to the judge, the weekend after L.G. was sentenced, and just three days before L.J.L. filed the ex parte motion, L.J.L. asked L.G. to take care of their child for an extra day because she had to go out of town on business, something incredibly inconsistent with her contention that it was too dangerous for L.G. to have unsupervised parenting time, and that she feared for their child’s safety when the child is with him. The judge did not know about this because L.J.L. failed to include in her supporting certification.
In response, L.G. gave the judge copies of the text messages exchanged between him and L.J.L., that weekend after his sentencing. The text messages showed that L.J.L was the one who reached out to him, told him that she had to travel to Dallas, Texas that Sunday night and would not return home until Monday night. The text messages further showed L.G. did not understand what L.J.L was asking, and he told her that she could have the child on Sunday night and he would see her on Monday instead so that L.J.L. would not lose two nights with the child. L.J.L. then explained that she would not be able to take care of the child on Sunday or Monday night, and that if L.G. could not take the child on Sunday, she would ask her mother to. L.G. then stated that he would take the child for Sunday and Monday, but that he was confused and did not want L.J.L. to lose any time with the child. L.J.L. thanked him, and the text message conversation ended.
Furthermore, L.G. submitted letters from the child’s dentist, pediatrician, and therapist that spoke to his active role in the child’s life. All of the medical professionals stated that it was always L.G., not L.J.L. who would bring the child for appointments. L.G. also submitted letters from camp counselors, a pastor, and a school official, that stated that he took good care of his child.
The parents appeared for the return date of the order to show cause on September 2, 2014. The judge asked L.J.L. if she admitted that she texted L.G. and asked him to take extra parenting time with their child only days before claiming that she thought he was too dangerous to have any supervised parenting time with their child. Initially, L.J.L. said that she did not remember if she contacted L.G., but later admitted that she made the request the weekend after he was sentenced. As such, on September 12, 2004, the judge issued an order that restored L.G.’s parenting time with the child, and vacated the previous order dated July 23, 2014. The judge stated that every part of the relief granted in the July 23, 2014 order to show cause was predicated on L.J.L.’s claim that she had a genuine fear that L.G. was not able to control his actions because of his conviction for assaulting his neighbor. Her voluntary act of asking L.G. to take care of the child the weekend after the sentencing brought the validity of L.J.L.’s concerns into question. L.J.L. appealed.
On appeal, L.J.L. argued that: the decision of the Family Part court was not supported by sufficient credible evidence. The New Jersey Appellate Division explained that they give significant deference to findings of fact made by the Family Part, because of the court’s special expertise in family matters. As such, the factual findings made by a Family Part court will be binding on appeal as long as they are supported by substantial, adequate and credible evidence. Moreover, the factual findings and legal conclusions made by a Family Part judge will not be changed unless they are so clearly unsupported by or inconsistent with the competent, reasonable, and relevant evidence that they offend the interests of justice, or if the court has abused its discretion.
After a review of the record in consideration of these principles, the New Jersey Appellate Division found that none of L.J.L.’s contentions had any merit whatsoever. In her application, L.J.L. claimed that L.G. was dangerous, could not be trusted to care for the child, and an immediate order was necessary to protect the child. However, as she was preparing to make her motion, L.J.L. contacted L.G. and asked him to take care of the child. The New Jersey Appellate Division found that the Family Part judge was correct to find that this request totally undermined her contradictory claim that L.G. should not share custody of the child. Therefore, the appellate panel affirmed the decision of the Family Part. `
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