The Appellate Division Provides Guidance As To Navigating Custody Disputes Through The “FD” (Non-Dissolution) Docket
The recently published Appellate Division decision of W.M. v. D.G., provided much needed guidance as to the manner in which non-dissolution custody matters between unmarried parents are to proceed in the trial court. The case presented issues several complex issues involving custody, psychological parentage, and the appointment of a law guardian for a minor child. However, the importance of the decision is not so much about the issues presented but rather the guidance provided to litigants (and lawyers representing clients) in navigating complex issues in the non-dissolution docket.
Before I proceed to summarize the Appellate Division decision, I will premise with a few remarks on non-dissolution matters in the FD docket. The “FD” docket in the context of the Family Part in the Superior Court of New Jersey, refers to “non-dissolution” proceedings between unmarried parents and typically involves issues regarding custody, visitation/parenting time schedules, and child support. In essence, if you have a child with another a person and are not married, but the relationship has ended, you and the other child’s parent will likely have significant issues which need to be resolved. Those issues - if they proceed to Court - end up in what is known as the FD or non-dissolution docket of the Family Part. The non-dissolution docket also includes non-parent relatives seeking custody, child support, and/or visitation.
The non-dissolution docket is very different than the dissolution docket in several respects. First and foremost, all non-dissolution cases are initially processed as
“Summary Actions.” As such, mon-dissolution matters generally proceed in a “summary” fashion unless the matter is specifically marked as “complex.” What this means is that the issues presented to the Court are adjudicated summarily or in a streamlined manner without in-depth investigation, discovery, or even hearings with fact and expert witnesses subject to cross examination. The summary nature of a non-dissolution action, which is ordinarily tried without the benefit of discovery, is intended “to accomplish the salutatory purpose of swiftly and effectively disposing of matters which lend themselves to summary treatment….” R.K. v. D.L., 434 N.J. Super. 113, 133 (App. Div. 2014).
However, although many non-dissolution issues, including establishing or enforcing child support, can be summarily adjudicated or resolved without much fanfare, other issues, such as establishing custody and parenting time (especially in contentious cases) require significant judicial attention and should not be adjudicated as a Summary action.
Until the recently published decision of W.M. v. D.G., there was confusion as to how such custody disputes should proceed in the non-dissolution docket. The Appellate division provided some guidance to assist litigants and the court in navigating these issues.
The matter of W.M. v. D.G. involved the custody of “Alex,” a seventeen-year-old boy, who was also an Intervenor in the action. In 2017, Alex was in the eighth grade and was a member of his school’s National Honor Society. The Plaintiff, W.M., was his National Honor Society advisor. It was at this time that D.G., Alex’s biological mother, accepted W.M.’s offer to assist Alex in completing an application for Alex to attend a particular high school in Newark. Alex then turned to his advisor for help in other aspects of his life as D.G. was suffering from depression, amongst other things. W.M. began taking Alex to school and church. Shortly thereafter, with Alex’s biological mother’s consent, Alex began living with W.M. and her family. During this time, Alex participated in various activities and excelled academically in high school.
This informal arrangement between W.M. and D.G. went on for a significant period of time until D.G. expressed concern that W.M. was “spoiling” Alex. D.G. believed that W.M. was “buying” her son and confronted W.M., demanding that Alex be returned to her custody. When Alex learned of this, he told his biological mother that he did not want to return home. At that point, W.M. filed an emergent application with the Court in November 2019, seeking to retain physical custody of Alex. D.G. then filed her own emergent application, seeking for Alex to return to her care. The trial court denied both applications and scheduled a hearing. The court permitted Alex to continue to live with W.M., pending the hearing.
The hearing occurred in mid-December 2019. After both parties testified, the court initially permitted Alex to remain with W.M. but continued the hearing to the end of January and directed Alex to be present for the hearing. At that time, both parties again testified as did Alex, who was then almost 17 years old. Alex told the court that his mother encouraged him to leave the house because of his schizophrenic brother. He testified that living with his mother was unhealthy as his siblings were abusive toward him and his mother was largely absent. He also expressed his unequivocal desire to remain with W.M., where he felt secure and supported. Alex told the Court he had “so much to say and it’s hard…to get it all out.”
At the conclusion of the hearing, notwithstanding Alex’s express desire to remain with W.M., the judge determined that Alex was to return to his biological mother’s custody. At that time, when the issue as to the suitability of D.G.’s home was raised by W.M., the court directed DCPP to assess the mother’s home before Alex moved back into her care and scheduled another hearing in March 2020. At that next court hearing, W.M. appeared with counsel. During that hearing, the Court for the benefit of W.M.’s counsel explained that that “these are summary hearings” and “we’ve been in court three times with regards to this matter. The court is not willing to reopen the matter…We’re already 107 days in on this matter. So, we’re over goal….” The Court then directed Alex to be returned to his mother.
Alex refused to go back to his mother causing Newark police officers to arrive at W.M.’s house to force him to return to his mother. Alex told the officers he was scared and that he had been assaulted at his mother’s home. The police officers told him he had no choice but to comply with the Court.
The next day, W.M, through her counsel, filed an emergent application for Alex’s immediate return to her home, seeking to be designated as Alex’s psychological parent. She also asked the court to schedule a plenary hearing to address the issues and moved to have an attorney appointed to represent Alex pursuant to Rule 5:8A. W.M.’s counsel advised the Court that an attorney had volunteered to represent Alex. The emergent application was denied but the court proceeded with a summary hearing a few days later where it denied the request for counsel for Alex as well as the request to remove Alex from D.G.’s care. An emergent appeal ensued, and the trial court orders were stayed by the Appellate Division pending the appeal.
The Appellate Division ultimately revered the trial court’s order. The Appellate Division determined that the trial court did not undertake a complete examination of the psychological parentage issue and never reached a best interest analysis for Alex’s benefit even though the facts clearly called for same. Moreover, the Appellate Division found other mistakes by the trial court as to its analysis on psychological parentage which will require a whole different blog. Notably, although Alex was almost eighteen by the time the appeal was concluded, the Appellate Divisions did not deem all issues as moot because the issues raised were capable of repetition and thereby warranted discussion.
Importantly, the Appellate Division used this case to provide guidance for the benefit of litigants in the FD docket who are navigating contentious custody disputes. First, the Appellate Division clarified that litigants involved in a non-dissolution custody dispute should be required to attend mediation before a plenary hearing is conducted which is the general rule in dissolution cases. Second, where custody or parenting time is an issue, a trial court in the FD docket may appoint counsel on behalf of the child or a guardian ad-litem to represent the child’s best interest in the same mode and manner as prescribed in the dissolution context. Third, the Appellate Division clarified that although FD matters are to generally proceed in a summary manner, cross-examination should be permitted to discern what is in the best interests of the child, which did not occur in W.M v. D.G. To this last point, the Appellate Division further clarified that a judge in the non-dissolution docket “has the authority to order, and parties have the right to request, that a matter be placed on a complex track.” As the Appellate Division observed, “placing the matter on a complex track would have alleviated some of the time constraints ordinarily associated with the FD docket, and afforded the court the necessary time to grapple with the difficult issues.” Notably, in this matter, neither party formally asked the court to place the case on a complex track.Perhaps the biggest take away from this case is that litigants (and attorneys representing clients) who find themselves in the FD docket with a complicated custody case should not hesitate to request that the matter be placed on a complex track thereby alleviating the constraints imposed by the summary nature of the proceedings. When it comes to issues as important as custody and determining what is in the best interest of a child, summary proceedings may not be sufficient. It is important to know and understand the tools available to you when fighting over matters such as this. The Appellate Division has now given clear caution and guidance on how to proceed when dealing with a such a case in the non-dissolution docket. The direction and guidance should be heeded.
 Dissolution refers to divorce proceedings between married couples and are handled under what is known as the “FM” docket in the Family Part of the Superior Court of New Jersey.