Dear Cassie: I am divorced. My ex-husband and I had one child of the marriage. I have primary custody. My ex-husband has recently purchased a dog for his home. The problem is, my child is allergic to dogs. What can I do to stop him?
-K.M.
Dear K.M.
Since you are divorced, I am assuming that you and your ex-husband have either a Marital Settlement Agreement (an agreement reached between the parties) or a Judgment of Divorce (a court determination after a trial) regarding custody and parenting time of your child. Reviewing your Agreement or Judgment of Divorce to determine if this kind of issue is addressed in any fashion is the first step in answering your question.
If there is a provision in the Agreement or Judgment of Divorce that specifically addresses the issue of allergies, that provision controls the issue. If your ex-husband is in violation of that provision, you have the right to file a Motion in the Superior Court of New Jersey to enforce the provisions of the Agreement or Judgment of Divorce.
If there is no provision in the Agreement or Judgment of Divorce that specifically addresses the issue of allergies, you still may be able to file a Motion in the Superior Court of New Jersey to modify the parenting time schedule, based on risk to the child. This Motion would be premised on the argument that the child’s allergy is severe (assuming that is the case), and the decision for your ex-husband to get a dog poses a risk to the child and/or was contrary to the child’s best interests. Keep in mind that a court will generally find that it is in the child’s best interests to have a relationship with both of his or her parents. Thus, a court is likely to consider the degree of the severity of the allergy, and whether there are protections that can be implemented in lieu of limiting the parenting time, such as ensuring that the dog is kept at all times in a separate location from your child, before the court modifies the parenting time schedule.
If you are dealing with the issue of parenting time, 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.
