Sufficient Proof Required to Terminate Overnight Visitation

Jun 29, 2016

In Arrowood v. DiBenedetto, the Appellate Division affirmed the trial court’s denial of Ms. DiBenedetto’s motion to terminate Mr. Arrowood’s overnight visits with their daughter.  Ms. DiBenedetto based her motion on Mr. Arrowood’s alleged failure to stop smoking in their daughter’s presence.  The daughter had a medical condition that could be exacerbated by smoke and her pediatrician advised that she should not be exposed to it.

Ms. DiBenedetto submitted a note from the pediatrician and six court orders that all generally indicate that the daughter should not be exposed to smoke.  During the hearing, Ms. DiBenedetto also relied on a certification in which Mr. Arrowood admitted that he had smoked in front of their daughter.  Ms. DiBenedetto also relied on her daughter’s confirmation that Mr. Arrowood was smoking outside during his parenting time.

The trial court expressed disapproval for Ms. DiBenedetto’s decision to involve the daughter “in [her] internecine wars.”  The court explained that it was acceptable for Mr. Arrowood to smoke outside, so long as he did not smoke inside with the child.  And although the trial court again warned Mr. Arrowood not to smoke around his daughter, it declined to sanction him.  The trial court opined that Ms. DiBenedetto was more concerned about control than health, telling her that “the amount of control [she] want[s] to extend over this situation, frankly, exceeds normal bounds.”

The Appellate Division empathized with Ms. DiBenedetto’s frustration, but necessarily deferred to the Family Part’s discretion.  The Appellate Division emphasized its limited role in reviewing judgments of the Family Part, giving considerable deference to Family Part judges because of their “special jurisdiction and expertise in family matters.”

The Appellate Division could not conclude that the trial court abused its discretion from the appellate record.  Ms. DiBenedetto failed to include the daughter’s statements and Mr. Arrowood’s certification, but the Appellate Division noted that it is rarely an abuse of discretion for a trial court not to rely on hearsay.  The Appellate Division explained that it could not conclude based on such a scant record that the trial court abused its discretion by not terminating parenting time based on hearsay.

If you have a custody or parenting time issue, contact the skilled matrimonial attorneys at Sarno da Costa D’Aniello Maceri LLC.  Call us today at (973) 274-5200.