The practice of family law can be frustrating; it becomes all the more frustrating when you have both the law and facts on your side, but do not prevail because a court fails to adhere to basic rules of procedure and evidence. Indeed, family court is often the “wild west,” except, unlike a 60-minute episode of "Yellowstone" or a two-hour Sergio Leone “spaghetti Western,” Family Part cases often take years to resolve. In turn, pendente lite decisions regarding custody often “cast the die” for final custody determinations. Therefore, it is paramount that judges make pendente lite custody decisions that are not influenced by misguided notions that New Jersey is a “presumptive” 50/50 custody state or guided by hearsay expert reports that are not subject to discovery and cross-examination. Notwithstanding very clear legal principles on this score, decisions that run afoul of those principles frequently occur. Indeed, in the past 10 months we have seen five trial court decisions (three internally at our firm and two co-counsel representations) in which judges either (or both) applied a presumptive 50/50 pendente lite schedule and/or relied on expert reports appended to certifications filed in support of pendente lite motions.

Temporary custody decisions can “take on a life of [their] own, creating a new status quo.” Faucett v. Vasquez, 411 N.J. Super. 108, 119 (App. Div. 2009) (quoting Peregoy v. Peregoy, 358 N.J. Super. 179, 203 (App. Div. 2003)). And due to the limited grounds upon which interlocutory appeals are accepted under Rule 2:2-4 (“in the interest of justice”), see also Brundage v. Estate of Carambio, 195 N.J. 575, 599 (2008) (“possibility of some grave damage or injustice”), and the multi-year backlog of Family Part cases, judges must strive to get these decisions right. To that end, there are several important principles that guide pendente lite custody decisions.