How the Division of Child Protection and Permanency (DCP&P) Involvement Affects a Custody Modification Application in New Jersey

Modifying custody and parenting time (also called “visitation”) is possible upon a showing significant change in circumstances. The courts base decisions on what is in the child’s best interest standard. Here is a rundown on how to modify custody and parenting time in New Jersey and how DCP&P involvement affects such an application.

Before jumping into the process, you need to know that the courts use the “best interests of the child” standard, which considers many factors. The goal is to ensure the child’s safety, stability, and overall well-being. Some of the factors the court looks at include:

• The child’s safety and welfare
• The parents’ ability to cooperate and communicate about the child’s needs
• The child’s relationship with each parent
• The child’s preference (depending on their age and maturity)
• The stability of the home environment
• Any history of domestic violence or abuse

To modify a custody or parenting time arrangement, there needs to be a showing of change in circumstances since the last order was issued. A simple disagreement or preference to change the schedule usually isn’t enough.

The next step is to demonstrate that something has changed. This could be a change in the parent’s living situation, health, job schedule, or the child’s needs. In some cases, it might be a significant behavioral change, such as one parent being unable to care for the child properly or there being new safety concerns, or abuse.

Once you’ve established that there has been a change in circumstances, the next step is to file a motion or application to modify custody or parenting time. The motion must be filed with the family court in the county where your divorce or custody case was originally decided. Once your motion is filed, you’ll need to serve the other parent with a copy of the motion or application. This means you formally notify them that you’re requesting a modification of the custody or parenting time arrangement. If the other parent is served, they have the right to respond, and may file their own motion or objection to your request.

However, if DCP&P is involved and abuse suggested, an application to modify custody may necessitate an emergent filing by way of an Order to Show Cause (OTSC) so that the court may expeditiously consider the requested custody relief when determining the child’s best interest. New Jersey courts take DCP&P findings seriously because they are an indication of how a parent may be affecting the child’s well-being. When a parent requests to modify custody based in whole or in part on a DCP&P finding, the court will consider the severity of the finding, along with the potential and imminent risks to the child. It is wise to have a seasoned family lawyer in New Jersey on your side during this process to ensure that the procedures set forth are correctly complied with to serve the best interests of the child. The impact on an application to modify custody in an emergent application versus a standard application can vary depending on the DCP&P classification of finding, categorized into four tiers:

A substantiated finding means that there is credible evidence that the child has been abused or neglected, and the claim is supported by facts. In this case, the court is likely to take the finding seriously, and the parent with the substantiated finding against them could face a significant change in custody or parenting time. This could include a reduction in visitation or even a transfer of custody to the other parent or another relative. Courts often make these decisions to ensure the child’s protection, especially if the child has been harmed.

An established finding is a step further than substantiated. It means that abuse or neglect has been proven beyond a reasonable doubt in a legal context. This finding can have an even greater impact on custody applications, as it strongly suggests that the child was harmed, and the parent is considered to have a history of harmful behavior. In these situations, the court is likely to be cautious about allowing the parent with the established finding to have significant custody or parenting time, and the court may adjust arrangements to protect the child.

A not established finding means that while there may have been some concerns about abuse or neglect, the evidence was insufficient to prove the claims. In these cases, the court may still review the situation but may be less likely to change custody arrangements. However, it could still influence the court’s decision if there are other factors at play or if there are concerns about the child’s ongoing safety. Even if abuse or neglect wasn’t proven, the court could still make adjustments based on other circumstances, such as the child’s current living conditions or the parents’ behavior.

An unfounded finding means that the allegations of abuse or neglect were determined to be false or without merit. In this case, the court will likely not consider the finding to be relevant to the custody modification request. The parent with the unfounded finding would probably not face any negative consequences regarding custody, as the court would generally view the allegations as baseless. However, if there are other factors or reasons for seeking custody modification, the court will look at those independently.

If a parent wants to modify custody based on a DCP&P finding, they will typically have to show changed circumstances in the context of that finding. For example, if a parent has been found to have abused or neglected a child, and the court determines the child is no longer safe in that parent’s care, the requesting parent can ask for custody modification. On the other hand, if the finding is less severe, like not established or unfounded, it may be harder for the requesting party to prove that a change in custody is necessary.

An exception to the usual motion to modify child custody practice and service requirements is when an emergent application, also known as an Order to Show Cause (OTSC), is made necessary due to the severity of the matter and imminency of potential harm to the child. In the case of an OTSC, the court will hear the matter expeditiously even without service on the other parent if necessary. If the court is convinced that there is legitimate potential for imminent harm to the child an order will be entered immediately transferring custody on a temporary basis and another date set for a full hearing with both parents to determine whether a permanent change in custody is warranted to serve the best interests of the child.

When using the OTSC procedure in a family law matter, it is essential to understand how the Crowe v. DeGioia case law applies to family law cases in New Jersey. Family law issues, such as custody disputes and domestic violence often involve urgent situations where an OTSC may be appropriate. The Crowe v. DeGioia decision (90 N.J. 126, 1982) is important because it sets the standard for when a court may issue an OTSC. Family law cases, particularly custody modifications involving emergency relief after a DCP&P finding often require expedited judicial intervention. Here’s how the Crowe decision affects emergent applications to modify custody:

Emergent Need for Relief

Family law matters often involve time-sensitive issues. For example, if there is a request for emergency child custody or temporary restraining orders (TRO) for domestic violence, the court must assess whether immediate intervention is necessary to prevent harm or hardship. Crowe stresses that an OTSC can only be issued when the party shows an emergent need that requires immediate attention. Involvement by DCP&P may support the request for emergent relief.

Likelihood of Success on the Merits

A reasonable likelihood of success on the merits of the underlying legal issue must be established. For example, evidence must be presented to suggest that the plaintiff is likely to succeed in obtaining the relief requested. This doesn’t require the proof to be definitive, but the request should be plausible.

Serious Harm or Injustice

This could mean preventing further harm to a child and that without immediate modification of custody, the child would suffer serious harm or that justice would not be served.

Specificity of the Request

The application must detail the specific relief sought. Whether it is an emergency child custody order or a TRO in a domestic violence case, the request must be clear and well-supported by facts and legal arguments. The more specific the request, the better chance of obtaining the desired temporary relief pending further hearings. The court will usually defer to the DCP&P findings and recommendation when considering the relief sought.

Temporary Relief

The OTSC is a procedure that allows for temporary relief until a full hearing can take place.
Final thoughts when filing a Custody Modification Application in New Jersey:

• The child’s best interests are always the priority: The court wants what’s best for the child, not necessarily what either parent prefers.
• It can take time: Absent an emergent OTSC hearing, court cases involving custody and parenting time can be lengthy.
• Avoid filing a motion without a real change: Courts can be reluctant to modify custody arrangements unless there’s a clear, substantial reason for it. Having DCP&P involved may serve to expedite a custody modification application and provide additional evidence to support the requested relief.