“A mother with such concern does not do what she did. She does not elect to place her child in the hands of the person whom she believes is not capable of safely caring for her child just because she has to go on a business trip.”
A February appeals court found that a mother who asks a court to take custody away from a father because he is a danger to the child’s safety, because of his history of anger, should not ask the father to take care of the child 3 days before going to court.
The couple began dating in 2004-2005, had a child in 2006, and later broke up. Since then, they had at least 3 written custody and parenting time agreements, negotiated by their attorneys. The last one provided for shared joint legal custody, and equal parenting time. Also, neither party would have to pay child support.
In July 2014, the mother filed an emergency application with the family court to temporarily restrain the father from custody. She claimed that the child’s father “…had been charged in April 2013 with assaulting his 70 year-old neighbor during a dispute about the alleged removal of decorative stones from defendant’s yard.” He was convicted of third degree aggravated assault and sentenced to two years probation and anger management/mental health screening.
The mother claimed that the conviction showed defendant’s conduct “in an increasingly bizarre and oftentimes unnecessarily violent manner.” She also gave the judge 50 pages of police reports dating back to 1998, concerning defendant’s history of arguments/disputes with past “neighbors, business owners, and other individuals.” The court noted that most of those involve incidents predating the 2011 parenting agreement.
She also told the family judge that even though none of these disputes involved the child, they make defendant unfit to have unsupervised parenting time. Her lawyer told the court that the application needed to be made on an “ex parte” basis (without the presence of all parties, i.e. the father) because there was fear over what he might do if notified. The judge issued an order “awarding [the mother] sole legal and physical custody of the child pending [another court date] with [the father] having only supervised parenting time in the interim.”
But the mother failed to notify the judge that just 3 days before filing her application, she contacted the father to request “he take care of the child for an additional day while she went out of town on business, an action that was hardly consistent with her claim that it was too dangerous…”
The father responded to the order in several ways. First, he provided the judge with copies of text messages between him and the mother the weekend after he was sentenced for the assault conviction. These included her requesting that he care for the child an additional two days because she had a business trip to go on. He also provided letters from the child’s “pediatrician, dentist, and therapist attesting to his active involvement in the child’s life.” He also provided letters from a pastor, camp counselors, a school official, and others “asserting that [he] took good care of the child.”
When the parents appeared in court on the date of the hearing, the judge pointedly asked the mother if she in fact did contact the father to watch the child just days before filing her application. She first said that she did not recall, and then admitted that she did. The judge vacated the order and restored the father’s custody/parenting time with the child.
The mother next asked the judge to reconsider his decision. He denied he request. The only reason the trial judge granted her initial application was because she told the court she genuinely feared for the safety of the child, while at the same time failing to disclose her completely contradictory behavior.
The judge noted that the many police reports that were mostly prior to the 2011 parenting agreement did not amount to a showing that the father posed a danger to his child.
On appeal, the mother presented 10 new claims in an attempt to resurrect her case. The appeals court swiftly concluded that they were without sufficient merit to even write a written opinion. It noted that she destroyed any credibility in her claim that the father posed a danger to the child, by her own contradictory and deceptive behavior. A court, like the average person, does not appreciate being deceived, especially when the interests of a child are at stake. Evan Xavier Bakhet is a J.D. Candidate at Rutgers School of Law-Newark with a scheduled graduation date in 2017. He collaborated with me on this blog.
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