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Every family situation is unique. In the midst of the pandemic, some families are under so much stress that spouses are questioning their compatibility, or even contemplating divorce. Deciding whether to get divorced is a personal and emotional process, and judgment about a spouse’s attributes and flaws can morph into volatile descriptions of behavior on an extreme scale of good vs. bad. In our practice of family law, it’s not uncommon to hear in an initial consultation, “My spouse is a very bad parent, and should not have custody of the kids.”

But what does “bad” mean? To the court, bad is not a legal term; rather the court looks to a standard of parenting to determine if a parent is “unfit.” The word unfit, in this context, is not precisely defined. It is based on numerous factors that potentially affect a parent’s ability to provide a safe, nurturing and secure home that will not put a child at risk of suffering psychological, physical or emotional harm. The burden of proof is on the parent making the claim.

First, Protect the Children
If the children are in fact in a dangerous situation and their safety and health is at risk due to a parent’s behavior, emergent action is required. If a parent contacts DCP&P, or other authorities, it’s important to know that police, schools, therapists, and doctors all have an affirmative obligation to report abuse or neglect. It may be necessary for the parent and children to leave the marital residence. If the children’s safety is not at risk, the parent may want to remain at the marital residence and collect evidence to prove that the spouse is unfit.

Know the Difference Between Imperfect and Unfit
When a parent says that a spouse is “bad” or even perhaps legally unfit, it’s critical to know what supports that belief and to provide concrete proof about what is actually happening in the marriage. No parent is perfect. The responsibility of parenting comes with ups and downs, but at its core it is about protecting a child’s welfare, providing a safe home and education, and above all, ensuring that the child does not suffer mental or physical harm at the hands of the parent.

A court will begin with the premise that each parent has equal rights to their children, and that the children deserve both parents in their lives. As such, there is a high standard of proof required for a court to determine that a parent is unfit to be a custodial parent.

Keep a Journal to Assess Behavior
How can a court be sure that the accusations and blame are real, rather than stemming from a high level of frustration between the spouses? How can a court be certain that the accusing spouse is not trying to gain some kind of advantage? These questions can only be answered by providing concrete proof that a parent is unfit. New Jersey lists 15 “indicators of harm” for an allegation based system.

If a child is not in imminent danger and does not require the intervention of police or child welfare officials, then I advise a parent to begin to keep a journal of the “bad” behavior, which might include:

  • Substance usage, legal or illegal
  • Abuse, physical or verbal
  • Neglect
  • Poor judgment
  • Any other impairment of a parent that would lead a court to believe that they are incapable of caring for the needs of their child

At the same time, the journal should include facts supporting the accusing parent’s nurturing attributes and actions. The journal should include any records that can confirm the parent’s ability to provide stability for the children as well as the other parent’s inability to maintain a safe home.

The Process in New Jersey Starts with Mandatory Mediation
Custody and parenting time issues are subject to immediate mandatory mediation to address those issues.The court may also appoint a custody expert to evaluate the situation and recommend what’s in the children’s best interests. Custody experts are recognized by the court for their specialized mental health training, and typically hold titles such as DSW or PhysD. The custody expert may supervise parenting time and watch the family interact; in-home evaluations are happening even during the pandemic, with the custody expert adhering to social distancing and mask mandates.

The children will be asked about their feelings. They may feel stress in this situation, and an uncertainty about the process. The custody expert and your attorney can answer their questions, which may range from “Will I need to speak to a Judge?” to “What will happen to me and my siblings?” and even to “Will one or both of my parents hate me if I say anything about abuse or neglect?”

Again, the legal standard is that children should get the best of both parents, unless there is a finding that a parent is unfit. If parents can’t resolve the issues on their own, and they choose to litigate, keep in mind that the children may feel betrayed by both parents.

Why Arbitration is a Good Option
Due to the closures of courts since the pandemic began, there is a backlog of cases waiting to be heard. Emergent applications are prioritized, and if a child’s welfare is at risk the matter may need to be tried in court.

Absent such an emergency, divorcing couples are likely to find that their court dates have been delayed by six months or more. This setting can further fuel frustration and disagreement, and so it is advisable to consider arbitration as an alternative way to resolve the marital dispute. “Bad” may not mean “unfit” and it may be beneficial to resolve that issue and try to work out a parenting agreement without litigation.

Throughout the process, reassure the children that they are not at fault, and that both parents are working on a resolution that will be in their best interests. Seek out professional therapists to help the family manage the difficult emotions and provide the necessary support. Divorce is not easy for anyone. The process is complex, fraught with acrimony and disruptive to a family’s private lives. With a compassionate and strategic approach, the question of whether a parent is bad or unfit can be answered appropriately, and a resolution can stabilize the long-term relationships within the family.

Evan R. Weinstein is a Partner at Weinstein Family Law, A Professional Corporation, located in Short Hills, New Jersey. His practice is devoted exclusively to family law and related matters.  In addition to representing parties in contested matters, Mr. Weinstein is also available for private mediations.  Mr. Weinstein has written for various local and national publications and has lectured on a variety of family law issues.
 You can reach him at eweinstein@familylawnj.com
 or 973-403-6000.

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