On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County.
Before Judges King,*fn1 Muir, Jr., and D'Annunzio
The opinion of the court was delivered by D'ANNUNZIO, J.A.D.
In this post-divorce litigation regarding the custody of two children, the father, a New York resident, appeals from an order transferring physical residential custody to the mother, who resides in Essex County, New Jersey, with her husband. We granted a stay of the order pending appeal and ordered that the appeal be accelerated. Thus, the children currently remain with their father in New York.
The facts material to our resolution of this appeal are not complicated. The parties were divorced in New Jersey by a judgment entered in 1987, which incorporated an agreement as to custody of the children. The children are George, who was born on December 31, 1980, and Alexander, who was born on April 14, 1982. The divorce judgment provided that the parties would have joint custody of the children and that each parent would "participate in all major decisions regarding the children's health, education
and well-being." The mother was named as "the primary residential parent for the children." In 1992, the father filed an application in New Jersey for a change in custody. That application was resolved by a 1993 agreement between the parties amending the divorce judgment. The amendment provided that each parent was "to have joint legal custody of the unemancipated children of the marriage." It transferred "residential responsibility" for the children to the father "starting with the 1993-1994 school year." The amendment also provided:
During this time, Father shall be the primary residential parent for the children. At the end of the 1993-1994 school year, the parties agree to discuss with each other where the children shall primarily reside thereafter. Any disagreement in this regard shall be resolved by a Court of competent jurisdiction in the State of New Jersey. During the 1993-1994 school year, the Mother shall have the same visitation rights presently enjoyed by the Father pursuant to the schedule which is part of Exhibit A.
Paragraph five of the amendment provided for mediation by a Dr. Lagos in the event of disputes between the parties. Paragraph five concluded with the requirement that "submission of the dispute to Dr. Lagos for mediation shall be a condition precedent to submitting it to a court for resolution."
The parties implemented the amendment and George and Alexander began to reside with the father in New York and were enrolled in school there in the seventh grade. During that school year, the parties disputed the residential status of the children after the 1993-1994 school year, and they met with Dr. Lagos in a mediation session in April 1994. The mediation was unsuccessful and the dispute festered. On August 29, 1994, the mother filed this application to transfer residential custody of the boys to her. The court signed an order to show cause the same day, returnable on September 8, 1994. The father filed a cross-application for residential custody. Numerous affidavits were filed with the court and the court had the benefit of a report by Jeffrey Weinstein as guardian ad litem for the children. The court heard final arguments on September 23, 1994. The court ordered a transfer in residential custody without interviewing the children and without
a plenary hearing, despite the court's characterization of the issue as close.*fn2
We agree with the trial court that the issue was close. It appears that the boys have thrived academically, socially, athletically and in their relationship with each other during their residence in New York. There was some legitimate concern regarding the living arrangements in New York. The father had remarried and was living with his new wife and her teenage daughter in the wife's home. The wife's home had some space constraints which resulted in or aggravated some friction involving the father, the new wife and the two boys. Consequently, supplemental living space was rented around the corner. There was no evidence, however, of any imminent harm or threatened harm to the well-being of the boys as the result of this living arrangement or as the result of any other fact connected with their residence in New York. We are persuaded, therefore, that there is no justification in this record for the trial court to have made a custody decision on an emergent basis, without a plenary hearing, and in the absence of an interview with the children. R. 5:8-6; see Wilke v. Culp, 196 N.J. Super. 487, 501, 483 A.2d 420 ...