New Jersey State Bar Association
Bergen County Bar Association

Voluntary Retirement and Child Custody in New Jersey


In a recent New Jersey child custody decision, the father appealed after a lower court decided against his request for a modification. The couple divorced in February 2014. The judgment incorporated a marital settlement that gave the parents joint custody and shared parenting time of three daughters. Nine months later, because of changed circumstances, the mother was given sole residential custody of the oldest daughter.

The father voluntarily retired and relocated 60 miles away from where his daughters were living with their mother. He asked the lower court to modify his divorce judgment. He wanted primary residential custody of two of his daughters, as well as termination of child support and an adjustment of parenting time. The reason he wanted the modification was that shared custody was impractical. He also claimed his new hometown had a better school system and was in a place that was safer.

The mother cross-moved, asking for primary residential custody of the two daughters. A guardian ad litem was appointed, and that person issued a written recommendation about residential custody. The defendant was also ordered to pay the plaintiff the balance of her shares of the 2013 income tax return and marital home sale. The judge ordered that based on the reallocation, the defendant would have to pay the rest of the guardian ad litem’s fees.

The guardian ad litem recommended that the mother get primary residential custody. The judge followed this recommendation, finding it was in the daughters’ best interests to live mostly with the mother because they’d always gone to school and socialized in that area. The judge also recognized there was a possible adverse impact from separating the three kids and reducing how much they interacted with each other.

The judge rejected the argument that there was a better school where the father lived. The father was made the parent of alternate residence and had parenting time every other weekend and only once midweek in the place where the children were living. Child support was recalculated to be $214, based on the mother having primary residential custody and the child support guidelines.

The judge rejected the father’s claim that his retirement income should be used to calculate support because he was eligible to do so. The judge decided this wasn’t good cause, since his retirement was voluntary. He was imputed his last annual salary of over $80,000. The father appealed.

The appellate court explained it had to give deference to the family law judge. The child’s best interests were the court’s primary consideration under Kinsella v. Kinsella. A guardian ad litem gets involved on behalf of the court and provides independent fact-finding and investigation about the child’s best interests.

The appellate court affirmed the lower court’s ruling, finding there was no abuse of discretion in appointing a guardian ad litem or awarding the mother primary residential custody and recalculating child support. The court found these decisions were based on credible facts, rather than a summary adoption of the guardian ad litem’s recommendations. The appellate court also found that the defendant had voluntarily retired even though he had to support three daughters, so there was no basis to his claim that a lower retirement income should be used to calculate child support.

If you are considering a divorce in Bergen County, and you are concerned about alimony or child custody, it is important to retain an experienced and aggressive attorney to seek an appropriate outcome. Contact the lawyers of Leopold Law at (201) 345-5907 or through our online form. We have attorneys available who can handle all aspects of a divorce.

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