EDWIN RIVERA VS. NEW JERSEY STATE PAROLE BOARD(NEW JERSEY STATE PAROLE BOARD)
A-2813-15T2
| N.J. Super. Ct. App. Div. | Jul 13, 2017Background
- Parties separated after a long relationship; they share one child (born 2007). Plaintiff given primary residential custody; defendant had limited weekday and alternate-weekend parenting time per 2013 consent order.
- Defendant (longtime IT manager) voluntarily moved to Bora Bora in Oct 2013, switched careers to self-employed photographer, and his income fell ~75%. He remained a French citizen with family in France.
- The parties entered a detailed August 2015 consent order providing for progressive electronic contact between defendant and the child and directing the parties to collaborate on future physical parenting time; it contemplated international travel with 20 days’ notice but did not fix new physical-time rights.
- Plaintiff obtained and later dismissed a TRO/FRO relating to defendant’s website posts and alleged harassment; the August 2015 order limited disparagement and governed communications and electronic parenting time.
- Defendant moved (Oct 2015) to reduce child support and to permit the child to visit him in France/Bora Bora for holidays; plaintiff cross-moved to require reunification therapy, psychological evaluation, and to bar unsupervised and foreign parenting time.
- Trial court (Dec 17, 2015) denied support reduction, denied foreign vacation requests, ordered reunification therapy in New Jersey before any physical parenting time, required removal of the website, and adjusted arrears payments; defendant appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether reunification therapy may be imposed as a precondition to any physical parenting time | Therapy is required to protect the child given time apart, alleged harassment, and parental fitness concerns | No precondition in the consent orders; child wants to visit father; therapy unnecessary absent evidence of alienation or harm | Reversed: court erred to impose reunification therapy as a blanket precondition—record lacked evidence of need or defined therapeutic goals |
| Whether defendant had an enforceable right to take the child to France/Polynesia under the consent orders | Plaintiff: international travel now not in child’s best interests and requires therapy/safeguards | Defendant: consent orders contemplate international travel with notice and he completed electronic reunification; seeks court order for holiday/summer trips | Remanded/affirmed in part: neither consent order granted an absolute right, but defendant met burden to show Christmas trip to France was in the child’s best interest; court should craft physical parenting schedule absent changed circumstances |
| Whether child support should be reduced due to defendant’s lower income after relocation/career change | Defendant: substantial, permanent income reduction (now ~20% of prior) warrants modification | Plaintiff: defendant voluntarily reduced income; failed to comply with procedural Rule 5:5-4 and failed to prove "just cause" for voluntary underemployment | Affirmed: denial of reduction upheld—defendant failed to supply required case information and did not prove just cause for voluntary career change; income may be imputed |
| Whether the trial court properly received testimony via sua sponte judicial examination and denied requested psychological exam of defendant | Plaintiff sought therapeutic/psych eval and barriers to parenting | Defendant objected to procedure and opposed preconditions/framework | Appellate court disapproved court's unscheduled direct examination practice but did not overturn on that basis; psychological exam request denied below and not reversed; court criticized lack of evidentiary basis for therapy order |
Key Cases Cited
- Cesare v. Cesare, 154 N.J. 394 (1998) (standard of appellate review for family-part decisions)
- Lepis v. Lepis, 83 N.J. 139 (1980) (changed-circumstances burden to modify custody/visitation agreements)
- Quinn v. Quinn, 225 N.J. 34 (2016) (consensual custody agreements interpreted under contract principles but subject to best-interest review)
- MacKinnon v. MacKinnon, 191 N.J. 240 (2007) (appellate review and evidentiary support standards)
- Pacifico v. Pacifico, 190 N.J. 258 (2007) (leniency and discretion in interpreting domestic agreements)
- Slawinski v. Nicholas, 448 N.J. Super. 25 (App. Div. 2016) (Lepis procedural guidance for modification motions)
- Caplan v. Caplan, 182 N.J. 250 (2005) (imputing income when parent is voluntarily underemployed)
- Ibrahim v. Aziz, 402 N.J. Super. 205 (App. Div. 2008) (distinguishing involuntary unemployment of nonresident from voluntary underemployment)