On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FM-15-189-98S.
Before Judges Keefe *fn1, Eichen and Weissbard.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant Karen Shobert (formerly Luedtke) appeals from a March 27, 2000 order of the Family Part, awarding primary physical custody of her son, Timothy, to his father, plaintiff Richard Luedtke, with visitation rights to defendant, who lives in Oklahoma. The order resulted from a custody hearing on February 8, 2000 at which defendant appeared pro se. Because we find serious procedural irregularities in the manner in which the hearing was conducted, we reverse and remand for a new custody hearing.
Plaintiff and defendant were married on December 10, 1988. Timothy, the only child of the marriage, was born on December 31, 1990. In January 1996, defendant left the marital home in Manahawkin and began residing with her mother in Tuckerton. Plaintiff remained in the family home with Timothy. On August 23, 1996, defendant filed for divorce and, on that same day, the parties signed a "Separation and Property Settlement Agreement." The agreement provided that "the parties shall have joint custody of Timothy . . . the child living primarily with the husband, subject to liberal visitation rights to the wife and her mother Rachel Warner."
In early July 1997, defendant relocated to Oklahoma with her fiancé who was in the Air Force. Timothy accompanied defendant on this trip and returned with him to New Jersey on July 27, 1997. On August 11, 1997, the trial court entered an order that defendant not remove Timothy from New Jersey. That same month, plaintiff filed for divorce. On August 21, 1997, the court ordered mediation with respect to visitation. Pursuant to that order, a Probation Officer interviewed the parties and prepared a report concerning visitation, recommending that plaintiff retain custody of Timothy, with defendant having the child for six weeks in the summer and alternating holidays. On September 11, 1997, the trial court awarded sole custody to plaintiff, with defendant having liberal visitation rights. In April 1998, defendant, who had been living in Oklahoma, moved back to New Jersey, and thereafter petitioned the court to allow her to relocate to Oklahoma with Timothy. Pursuant to that request, the court ordered Dr. Michele Rabinowitz, a psychiatrist, to evaluate the parties and prepare a report for the purpose of determining the proper custody arrangement, including whether defendant should be allowed to remove Timothy from New Jersey. Thereafter, plaintiff and defendant agreed on a summer visitation schedule whereby defendant would have Timothy from Wednesday to Saturday of one week, and Thursday to Sunday of the next.
Dr. Rabinowitz issued her report on August 17, 1998, after interviewing Timothy and his parents and reviewing the child's school records. Without detailing the contents of the report, it suffices to say that Dr. Rabinowitz concluded that it was in Timothy's best interest to reside in Oklahoma with defendant.
On January 29, 1999, Mark White, Ph.D., a licensed psychologist retained by plaintiff, also issued a detailed report regarding the proper custody arrangement for Timothy, after having reviewed the child's school records and having interviewed him, his parents and their respective partners, as well as the child of plaintiff's then girlfriend, Christine Rouler. Dr. White concluded that defendant could have primary custody of Timothy provided she remained in New Jersey. However, Dr. White was of the view that custody should be transferred to plaintiff if defendant attempted to relocate to Oklahoma.
Rather than proceed to trial on the custody issue, the parties entered into a Judgment of Divorce (the judgment) on March 15, 1999. With respect to custody, the judgment provided:
1. Custody. The parties shall share joint legal custody of the minor child, Timothy Charles Luedtke, born December 31, 1990. The present shared parenting schedule with the minor child attending school in the Township of Stafford, where Plaintiff resides, shall continue. During the summer of 1999, the parties shall equally divide the time spent with the child, and commencing September 1, 1999, the child shall primarily reside with Wife and attend school in that school district with the express understanding that Defendant shall then reside in Southern Ocean County. At that time, Plaintiff's parenting time shall consist of three (3) out of every four (4) weekends, from Friday after school through Sunday at 6:00 p.m., every Tuesday night from after school until the child is dropped off at his school or bus stop on Wednesday morning, and Thursday evening from after school until 7:00 p.m. during the week when Plaintiff does not have custodial time the ensuing weekend. In addition, the parties agree that they shall follow and abide by the Court holiday schedule attached hereto. (emphasis supplied)
Notwithstanding the provision in the order, in April 1999, defendant once again decided to move to Oklahoma because she was carrying the child of Mr. Shobert, who she had met in Oklahoma and who lived there. In that same month plaintiff married Christine Rouler. Defendant contacted plaintiff in early June 1999 to discuss visitation. The parties agreed that defendant would be allowed to take Timothy to Oklahoma from July 3 to August 21, 1999, which she did. However, on August 16, 1999, defendant informed plaintiff that she would not return Timothy to New Jersey and that she planned to take legal action in Oklahoma to obtain custody. On August 23, 1999, plaintiff obtained an order from the trial court in New Jersey requiring Timothy's return to this state. On that same day, defendant appeared before a judge in Oklahoma. Following a conference call between the judge and attorneys for both parents, the Oklahoma court declined to exercise jurisdiction over the matter. Thereafter, plaintiff flew to Oklahoma to retrieve his son and return him to New Jersey prior to the start of the school year.
On December 10, 1999, defendant filed a motion requesting a hearing, pursuant to Holder v. Polanski, 111 N.J. 344 (1988), to determine whether she could remove Timothy from New Jersey to Oklahoma. The trial court signed an order on January 3, 2000, scheduling such a hearing for February 8, 2000. The court also ordered that the parties contact Drs. White and Rabinowitz for the purpose of updating their previously issued reports.
On February 8, 2000, the parties appeared for the Holder hearing. Plaintiff's attorney immediately requested an adjournment because he had not yet received Dr. White's updated custody report. Defendant, appearing pro se for reasons we will discuss at length hereafter, objected to the adjournment request and stated:
Yes, I don't have counsel, unfortunately, something happened, but four days notice to this, I traveled 1500 miles for my day in court, your honor, to represent what's in the best interests of my son and I'm further being denied that. It's my fundamental right to be able to sit in this forum right now and argue for relief for my son.
The judge denied the adjournment and ordered the hearing to proceed immediately. We briefly ...