At first, a divorce hardly ever seems like a good thing (although experience tells us it often is). It is usually even less of a good thing when there are children involved, victims of circumstances not of their choosing and completely out of their control. Yet children of a marriage play a major, although usually passive, role in the “final” outcome of a divorce matter.
The custodial and visitation rights of the parents are frequently the most hotly contested issues in a dissolution of marriage case and they are also among the few that are rarely final. Parents often try to modify custodial and visitation rights for any number of reasons (some valid, some perhaps questionable). The process can be both challenging and emotionally trying.
Perhaps you want to modify the visitation rights (also known in New Jersey as “parenting time”) that have been established in your divorce. Maybe your ex-spouse has indicated a desire to do so. Either way, the law in New Jersey is very specific about the procedure for getting it done. The law may be specific, but it doesn’t mean the process is easy.
Do I really need a lawyer?
Although hiring a family law attorney is highly recommended, the law does not require you to do so. The decision is entirely up to you, but before you make it, there are some things you should probably consider:
- Do you have grounds? In order to modify an existing visitation order, a court will want to see that there has been a “substantial change in circumstances”. If you don’t believe such a change exists, you are better off not pursuing the matter at all. Judges frown upon those who take up the court’s time with frequent motions that appear designed to simply harass the other party.
- Is your effort to modify visitation rights likely to be opposed by the other parent? If so, having competent legal representation is wise. If the matter becomes contentious, emotions can and often do cloud the judgment of even the most reasonable people. Remember that this is about the children. Having a lawyer will help protect the proceedings from becoming even more personal which may in turn harm the children involved.
- Is it worth it? Are you pursuing visitation modification for the right reasons? For example, perhaps there has been a substantial change in circumstances but there is really no need to pursue modification because things such as pick up and drop off continue to go smoothly and the children seem content with the arrangement.
How to modify visitation rights
The steps to modify visitation rights in Passaic County, New Jersey include the following:
1. Complete a Notice of Motion for filing and service on the other parent. If you are seeking to modify visitation rights, the law requires that you file a motion requesting the court to do so. The motion should set out, in detail, the reasons you believe the court should change an established visitation schedule and why.
2. Set a court date for hearing the motion. The court will review all of the documents and hear all the evidence in the matter and then determine whether to grant, deny or alter the relief requested in the motion.
3. A Certification must be completed.This form is designed to permit you to essentially state your case. You should explain to the court why the relief you are seeking in your Notice of Motion should be granted. Be specific, focusing on what you believe supports a finding that “a substantial change in circumstances” exists and why it is in the best interests of the children that a modification be granted.
4. A Confidential Litigant Information Sheet must be completed and filed to ensure the accuracy of all records in the court’s file.
5. A Proposed Order to modify visitation rights is required. If your motion is granted, this will be the order that the judge signs modifying the existing visitation schedule. Be sure that the language of the Proposed Order is consistent with what you’ve asked for in the Notice of Motion.
6. You must file a Certification of Filing and Service which informs the court of the following:
- That the Notice of Motion and all other necessary documents related to the motion have been delivered in person or via regular and certified mail on the other party within the time frame the law requires; or
- That the Notice of Motion and all other necessary documents related to the motion have been delivered in person or via regular and certified mail on the other party’s lawyer within the time frame the law requires; and
- How the Notice of Motion and all other necessary documents related to the motion were served on the other party or the other party’s lawyer (in person or via regular and certified mail).
7. Prepare the Notice to Litigants. The Notice informs the other party how to respond to your Notice of Motion and what the time limits are for doing so. If you fail to include a Notice to Litigants, the court has discretion to deny your motion, thereby forcing you to start over.
8. Every motion to modify visitation rights requires inclusion of a Case Information Statement. This document provides the court the financial details of your case including your income, the other parent’s income, a budget of your lifestyle and a budget of your lifestyle including the expenses of the children, among other things. Include a blank copy for the other parent to complete and submit to the court.
9. Proper filing fee must be included.
10. The entire packet of documents listed above must be filed. It must be accompanied by a cover Letter to the Clerk of the County in which the matter is filed.
A decision to modify visitation rights should not be taken lightly, not only because of the complexity of the procedure involved but also because of the long-term impact it might have on the children of the marriage/relationship. A family law attorney will help you make the decision that’s right for you and your children in your particular set of circumstances, including whether you should take such action in the first place. It’s often good to remember that even though you can do something doesn’t necessarily mean you should. This certainly applies to whether to modify visitation rights.