How to Prepare Evidence for a New Jersey Custody Case

Discovery

Except for summary actions and except as otherwise provided by law or rule, discovery in civil family actions works as follows (R. 5:5-1):

• interrogatories on all issues may be served as of course, and an interrogatory asking for financial information may be answered by reference to the Case Information Statement;
• depositions of any person, excluding family members under 18, may be taken as of course on all matters except the elements of the grounds for divorce, dissolution or termination;
• production of documents, requests for admissions, and copies of documents referred to in pleadings are permitted as of right, and all other discovery requires leave of court for good cause; and
• discovery is completed within 90 days of service of the complaint on the expedited track and 120 days on the standard track, or as set by case management order on the priority or complex track.

FD cases are summary actions, so R. 5:5-1 does not apply to them. Rule 5:4-4(a) instead lets the court, in its discretion or on either party’s application, expand discovery, enter a case management order, or conduct a plenary hearing.

The Rules of Evidence

The New Jersey Rules of Evidence apply in all proceedings conducted by or under the supervision of a court, including family proceedings, except where they may be relaxed in the specific instances listed in N.J.R.E. 101(a)(3). A few rules come up often in custody cases:

• Hearsay. Hearsay is a statement the declarant does not make while testifying at the current hearing, offered to prove the truth of the matter asserted (N.J.R.E. 801(c)).
• The other party’s own statements. A party-opponent’s own statement offered against that party is not excluded by the hearsay rule (N.J.R.E. 803(b)(1)). The other parent’s own texts and emails, offered against them, may fall under this rule.
• Records. Records made at or near the time by a person with actual knowledge, in the regular course of business, where it was the regular practice to make them, are admissible unless the sources or circumstances indicate they are not trustworthy (N.J.R.E. 803(c)(6)).
• Authentication. To authenticate an item, you must present evidence sufficient to support a finding that the item is what you claim it is (N.J.R.E. 901). Some documents, such as New Jersey public documents bearing an official signature, are self-authenticating (N.J.R.E. 902(a)).

Experts, investigations, and the child

• Court-appointed experts. When expert opinion will assist, the court may order a person to be examined by a health or mental health professional it designates, and may require a social investigation (R. 5:3-3(a)). Custody evaluators must conduct strictly non-partisan evaluations (R. 5:3-3(b)). Neither party is bound by the appointed expert’s report, the report goes to the court and both parties, the expert is subject to cross-examination, and the court entertains no presumption in favor of the appointed expert’s findings (R. 5:3-3(d), (f), (g)). Parties may retain their own experts (R. 5:3-3(h)).
• Family Division investigation. If custody mediation does not resolve the issues, the court may, before final judgment or order, require the Family Division to investigate the parties’ character and fitness, the family’s economic condition, the ability to pay support, and the parties’ homes. The home portion is limited to a factual description of the home, child safety precautions, household members and their relationship to the child, and criminal record checks for both parties. Recommendations on character and fitness must come from qualified mental health professionals, and the report is due within 45 days after the Family Division receives the order unless the court provides otherwise (R. 5:8-1).
• Guardian ad litem. A guardian ad litem files a written report with findings and recommendations and is subject to cross-examination on it (R. 5:8B(a)).
• Interviewing the child. As part of the custody hearing, the court may interview the child in camera on its own motion or at a litigant’s request. If it declines, it places its reasons on the record; if it interviews, counsel may submit questions, a record is made, and neither parent may reveal the contents without the court’s permission (R. 5:8-6).

Organizing exhibits

Exhibits attached to certifications must be separated from the text, for example by labeled dividers that extend beyond the edge of the page (R. 5:5-4(g)). JEDS, the Judiciary’s electronic filing system, does not accept uploads of evidence or discovery documents, so ask the Family Division how to submit exhibits for a hearing.

Primary sources

Rules and forms change. Check the current version at the source before you file. New Jersey statutes are published by the Legislature, and the Rules Governing the Courts by the Judiciary. Neither site offers a stable link to a single section, so statute and Court Rule links open the official search page; search there for the citation shown.

• R. 5:5-1, discovery
• R. 5:4-4(a), discovery and hearings in summary actions
• R. 5:5-2(c), amendments to the Case Information Statement
• R. 5:3-3, appointment of experts
• R. 5:8-1, investigation before award
• R. 5:8B, guardian ad litem
• R. 5:8-6, trial of custody issue
• R. 5:5-4(g), exhibits
• N.J.R.E. 101, applicability
• N.J.R.E. 801 and 803, hearsay and its exceptions
• N.J.R.E. 901 and 902, authentication
• NJ Courts, JEDS electronic filing