Judge, Not Therapist, Must Decide Child Custody and Parenting Time Issues

Child custody and parenting time issues are always fact sensitive and usually emotionally charged. Family Part Judges are regularly called upon to determine custody and parenting which is in the best interest of the child. The courts typically rely upon mental health professionals to determine what is in the best interests of the child.  However, Family Court judges are not permitted to shift their decision-making function to a psychiatrist or other mental health professional. On February 17, 2012 the Appellate Division, in an unreported decision, decided Penza v. Penza.  It Appellate Division reversed the trial court because it had denied the fathers motion to enforce the parenting time schedule, “without prejudice, pending the recommendation of the therapist”.  The father took an appeal and ultimately was successful in having the trial court’s decision reversed. In its decision, the Appellate Division recognized the challenges that Family Part Judges have in deciding custody disputes.  The court cited the Fehnel v. Fehnel decision in stating,

There are obviously few judicial tasks which involve the application of greater sensitivity, delicacy and discretion than the adjudication of child custody disputes, which result in greater impact on the lives of those affected by the adjudication, and which require a higher degree of attention to the properly considered views of professionals in other disciplines. . . . There have been frequent doubts expressed regarding the viability of the traditional adversarial process as an appropriate dispute resolution technique in child custody cases. But as long as we continue to resort to that process, it must be permitted to function consistently with its highest potentials.

The appellate court recognized the use of a psychologist and other mental health professionals is not only commonplace but necessary in determining the best interest of the child or children. However, the court cannot simply defer to the mental health professional. The Court stated,

“… the weighty responsibility of deciding on a parenting arrangement that is in the child’s best interests is still assigned to the judge.”

This decision is not only a reminder to the Family Part Trial Judges but also to family law lawyers.  It is not a good idea to assign or defer ultimate decision making ability to a mental health professional. Rather the better course, and what is supported by the law, is to have input and recommendations from the mental health professionals but ultimately leave the decision making process to the judge. If you or a loved one has questions regarding child custody or parenting time contact the family law lawyers at DeMichele & DeMichele. A confidential consultation is only a phone call away (856) 546-1350.