Child custody is often the most heated and contested issue in a divorce. Once custody is established, the courts are often reluctant to change the status quo absent a compelling reason. When these arrangements change, the state must follow a set procedure to ensure the stability and well-being of the children. But what happens when a family agency or a court tries to drastically change the family custody arrangement without following the expected process? A case from the New Jersey Division of Youth and Family Services, DYFS v. G.M., addressed this important issue in 2008.
History of the Case
In DYFS v. G.M., the Superior Court Appellate Division heard an appeal from a child abuse and neglect hearing from a New Jersey trial court. The parents of the children entered into a custody agreement in a 2000 divorce in New York. Under their consent judgment of divorce, the couple's two children were to reside with G.M., their mother, and allow M.M. visitation on certain weekends, holidays, and evenings. In 2001, the couple modified the agreement to allow the kids to relocate to New Jersey with their mother and adjust M.M.'s visitation for any issues related to future employment.
M.M. eventually moved to Florida, and the kids visited him on breaks and holidays at his home. In 2006, their daughter K.M. contacted her father about an argument she was having with her mother. M.M. contacted the New Jersey State Police, who responded to the mother's New Jersey home. The responding officer reported that the children were "crying hysterically," G.M. was visibly intoxicated, and there were empty alcohol containers around the house. G.M. told the trooper that during an argument, her mother had "pulled her shirt causing her to choke and vomit." The trooper saw vomit on the rug and M.M. rubbing her arm.
When a special response unit from the Department of Youth and Family Services (DYFS) responded, the daughter could not wake her mother, who was "incoherent and nonresponsive." The children told the DYFS worker that their mother drank alcohol regularly. She determined that a physical altercation had occurred and removed the kids to a neighbor's home on an emergency basis. No criminal charges were filed against the mother.
The DYFS Court Action
In March of 2006, DYFS brought an abuse and neglect complaint, also known as a Title 9 action, against the parents, G.M. and M.M., "seeking the care, custody, and supervision" of the children. At the hearing, G.M. was represented by counsel who emphasized that the children expressed no fear of their mother, there was no evidence of a risk of "imminent harm" to them, and they were enrolled in school. G.M.'s attorney urged the court to return the kids to their mother, but in the alternative, said she wouldn't be opposed to the kids staying with their father. M.M. appeared pro se and asked the judge to allow the kids to stay with him.
Relying on the testimony of DYFS and the N.J. state trooper, the judge found:
[G.M.] has failed to exercise a minimum degree of care and/or supervision and, in fact, placed the children at risk of harm by virtue of the incident that was reported. This . . . too would constitute an act of child abuse and/or possibly neglect by virtue of her alcoholic condition and what occurred.
He then entered an order transferring custody of the children to DYFS and giving temporary physical custody to their father with the condition that the kids stay in New Jersey. He also ordered the parties to arrange supervised visitation with K.M.
In follow-up hearings, the judge ordered the kids to go to Florida with their father for spring break and then allowed them to stay there for the remainder of the school year despite their wish to return home to New Jersey. DYFS also asked the judge to terminate the abuse and neglect proceeding so the parties could follow up on any custody appeals in family court over the objections of the children's law guardian and G.M.'s counsel. The judge didn't dismiss the case at that time but allowed the kids to remain in Florida with M.M. and ordered monthly supervision for G.M. This happened even though the kids stated they wanted to return home to New Jersey and against the recommendation of the kids' law guardian. In these hearings, the judge often discussed evidence and testimony presented by the parties without formally moving them into evidence or putting witnesses under oath.
However, during an October 26, 2006, follow-up hearing, DYFS again moved to dismiss the Title 9 abuse and neglect action, transferring legal custody to M.M. in Florida and requiring the mother to use the family court system to get custody back. G.M.'s attorney objected, pointing out that DYFS was legally obligated to attempt to reunify the family with G.M. and return them to the status quo. He further argued that a Title 9 abuse and neglect action was not the proper venue for a permanent custody transfer. Despite this, the judge granted DYFS's motion to dismiss the abuse and neglect proceeding:
There is nothing to stop the defendant from pursuing relief through the ordinary Family Court procedure if it appears that the situation should change. So this is not a case where the defendant is left without a remedy. It's simply a case where [D.Y.F.S.] has decided to withdraw from the family's life.
The judge's final order:
- Awarded the parents joint legal custody,
- Awarded her ex-husband full physical custody,
- Gave G.M. only supervised parenting time in another state,
- Terminated the pending abuse and neglect litigation, and
- Ordered G.M. to seek any further relief in the existing family court docket.
The Appeal
G.M. appealed the family court's 2006 order to the Superior Court Appellate Division. In its decision, the appellate court held that before the trial court permitted termination, the judge needed to decide whether the kids' best interests were served by:
- Continuing to live with their mom, the original custodial parent, but with DYFS's "continued obligation to provide services and to monitor the home life;" or
- A change in residential custody.
However, the lower court never held a hearing to consider this issue, especially since evidence indicated conflicting accounts of the kids' preferences and DYFS's recommendations. Therefore, "it was a mistaken exercise of discretion for the judge to grant DYFS's request and terminate the proceedings without a full custody hearing."
The appeals court pointed out that New Jersey law "clearly defines and limits" the options available to a judge "after making a finding of abuse or neglect." The court can:
- Suspend judgment,
- Release the child to the custody of the parents or guardian,
- Place the child elsewhere with someone suitable,
- Make an order of protection,
- Place the respondent on probation, or
- Order the respondent into therapeutic services.
But modifying custodial arrangements doesn't fall into one of those categories. The appeals court pointed out that the judge never considered a suspended judgment, and the order granted wasn't based on any "statutorily-authorized disposition." As a result, the appellate court determined that "the decision to modify the permanent residential custody arrangement was not authorized by this section of the statute."
Once the court terminated the abuse and neglect proceedings, the judge had no statutory authority to modify the children's custody arrangements. "His authority to do so rested solely upon our traditional jurisprudence that permits the court to modify an agreed upon custodial arrangement when faced with a change of circumstances, and when such modification was in the individual child's best interests."
Moreover, the appellate court noted that the trial court failed to follow the basics of evidentiary procedure and due process, discussing evidence that was never formally admitted into evidence and treating the fact-finding process in a "perfunctory manner" that "undermined its importance and relegated it to a mere technicality." The appeals court reversed the decision and remanded the matter back to the trial court to decide the issues consistent with the appeals court ruling.
What Does This Case Mean to Child Custody or Abuse and Neglect Proceedings?
So, can the court just take your kids or transfer custody during an abuse and neglect action? No. This case reiterated the importance of basic due process and procedures in court proceedings that can end with a change in custody. Without a full hearing with the opportunity to present evidence and question witnesses, along with the appropriate trial procedures, court proceedings become unfair to litigants and families whose lives are upended. As New Jersey courts have noted, "the trial judge has the ultimate responsibility of conducting adjudicative proceedings in a manner that complies with required formality in the taking of evidence and the rendering of findings."
If you're facing a child custody dispute, a DYFS investigation, or an abuse and neglect proceeding, you need the guidance of the skilled Criminal Defense Team at the Lento Law Firm. This DYFS case also illustrates the importance of having an experienced attorney familiar with DYFS investigations and hearings, walking you through the process. The Criminal Defense Team at the Lento Law Firm has been helping families like yours for years. Find out how they can help you, too. Call them at 888-535-3686 today or schedule your consultation online.
