Dear Cassie: I am divorced. My ex-wife and I have two school-aged children. Under our Marital Settlement Agreement, my ex-wife has primary custody of them, and I have visitation rights. Both of us work full-time. Given the current circumstances involving coronavirus, we have lost our child care. My employment allows me much more flexibility and availability to care for our children than my ex-wife. Can I assume primary custody of our children now?
First, you should understand that the settlement reflected in your Marital Settlement Agreement represents a final settlement of your matter. Both you and your ex-spouse are bound to the terms contained in that document, including the custody and parenting time terms.
However, under New Jersey law, custody and parenting time arrangements set forth in a Marital Settlement Agreement are subject to modification based upon a permanent and significant change in circumstances.
The coronavirus has presented unique challenges that have never before been encountered in New Jersey law. However, you may be entitled to a modification of the custody and parenting time arrangements included in your Marital Settlement Agreement if you are able to establish that the coronavirus has caused a material change in your and your ex-wife’s circumstances.
In considering such a request, a court is likely to consider each party’s current work schedules, including the days and hours worked and whether such work can be conducted remotely/from home; the historical caretaking arrangements of the parties; the specific plans for the children’s school and/or day care to reopen, and when; and the costs and availability of alternative child care, among other facts. If the loss of child care is expected to be only temporary in nature, it is unlikely that a court will permanently modify the parenting time arrangements set forth in your Marital Settlement Agreement. Conversely, if it can be shown that the lack of child care is expected to be long-term in nature, a court is more likely to grant a request to modify the child care arrangements.
As with nearly all family law issues, a resolution of this particular issue is fact-sensitive, meaning that it will depend on the specific facts and circumstances of your case.
If you are dealing with the issue of changes to custody and parenting time in the midst of the coronavirus, you should seek the advice of matrimonial counsel.
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Cassie Murphy is a divorce and family law Partner with the Law Offices of Paone, Zaleski & Murphy, with offices in Red Bank and Woodbridge.