By: Lauren E. Sharp
The FD or “Non-Dissolution” Docket is considered by some to be the more “relaxed” version of the FM “Dissolution” docket. However, this characterization was denounced in a recently published New Jersey Appellate Division case, J.G. v. J.H. Specifically, in J.G., the Appellate Division found that the nature of a dispute, rather than the docket designation, should guide judges when determining the resources required to make a determination.
In J.G. v. J.H., the unmarried parents of John, a minor, entered into a consent order whereby they agreed to share joint legal custody of John with J.G. (Jane) having primary residential custody and J.H. (Joseph) given parenting time. Subsequently, the parties briefly reconciled and the consent order was vacated. After the parties’ reconciliation ended, Jane began a new relationship and ultimately became engaged. Subsequent to her engagement, Joseph filed an Order to Show Cause requesting sole custody of John claiming that Jane’s fiancé was a convicted felon and drug user and he was worried about John’s safety.
Joseph’s Order to Show Cause was denied as non-emergent because the Judge did not believe that there was substantial evidence demonstrating an imminent threat of harm. Notwithstanding the overall denial of the Order to Show Cause, the Judge issued a temporary Order granting sole physical custody of John to Joseph pending the ultimate resolution of the matter. Jane was given supervised parenting time. In response to Joseph’s Order to Show Cause, Jane filed her own Order to Show Cause alleging that John would face irreparable harm if he was abruptly separated from his mother. Jane’s Order to Show Cause was denied as non-emergent.
On the return date of the Joseph’s Order to Show Cause, Jane’s attorney requested that, given Joseph’s request for a change of custody, he have the opportunity to place the matter on the “complex track” thereby allowing the parties to conduct discovery. The Judge denied this request stating that “it’s an FD matter … it’s not a divorce.” At the conclusion of the hearing, the Judge granted the parties joint legal custody but awarded Joseph primary residential custody of John and gave Jane parenting time. Jane appealed, and the Appellate Division reversed and remanded the trial court’s decision.
The Appellate Division set forth that although the FD Docket is often viewed as more “laidback” than the FM Docket, this is not necessarily the case. The Court identified that it was improper for the trial judge to deny the request for additional discovery simply because the matter was labeled “FD.” Pursuant to New Jersey Court Rule 5:5-7(c), non-dissolution matters are presumed to be non-complex but that does not preclude the Court from determining whether or not to allow the parties to conduct discovery. In multifaceted matters such as those that require a plenary hearing, trial courts are required to allow discovery notwithstanding the docket designation.
Additionally, the court set forth that in matters where custody is at issue and there are materially conflicting representations of fact, in order for a judge to make a representation, a plenary hearing is necessary. However, prior to the scheduling of the plenary hearing, the trial court is required to order the parties to participate in the alternative dispute resolution process. First, the parties are to be sent to mediation and if they are unable to resolve the issues, they are required to submit a custody and parenting time/visitation plan pursuant to Court Rule. The parties are also entitled to conduct discovery, “absent cogent reasons for denial.” Finally, the Court should order what is commonly known as a Best Interests Evaluation, which is an evaluation conducted by a neutral third-party who is a member of the court-staff. After all of the above steps are taken, a trial judge can conduct a plenary hearing and, if they are provided with all information necessary, they may make a determination as to custody.
The decision in J.G. v. J.H. provides both litigants and counsel with guidance as to how to approach a custody dispute in the FD docket. It also belies the perception that “any dispute labeled FD rather than FM or divorce, requires fewer judicial resources.”