January 24, 2007
JOANN JANICKI, PLAINTIFF-RESPONDENT,
GEORGE MARTZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FD-12-47-01-E.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 13, 2006
Before Judges Parrillo and Sapp-Peterson.
Defendant George Martz appeals from the March 2, 2005 order of the Family Part awarding sole custody of his daughter, Amanda, to her mother, Joann Janicki. We reverse.
Martz and Janicki lived together for several years, commencing in 1995. One child, Amanda, was born to the couple on April 26, 1999. In 2000, the parties began to have differences that ultimately led to the issuance of a number of restraining orders. Those orders were either dismissed at the request of Janicki or dismissed as unsubstantiated. In October 2002, Janicki and Martz reached an agreement on issues of parenting and custody of Amanda. Under the agreement, Janicki and Martz had joint legal custody of Amanda, with Janicki having residential custody, while Martz enjoyed liberal in-state and out-of-state visitation and daily telephone contact. In addition, the agreement fixed Martz' child support obligation at $62.50 per week.
In January 2003, Martz was arrested and charged with weapons offenses and aggravated assault. He pled guilty to third-degree possession of a firearm without a permit and fourth-degree aggravated assault. He was sentenced to a five-year custodial sentence.
On March 2, 2005, Martz, while still incarcerated, was transported by the Department of Corrections Central Transport to the Middlesex County Superior Court, Family Part, where, for the first time, he learned that Janicki had filed a motion for sole custody of Amanda. He alerted the judge to the fact that he had not received notice of the motion and wanted an opportunity to discuss the matter with an attorney. His request was denied. The court granted sole legal custody of Amanda to Janicki based solely upon the fact that Martz was incarcerated. The judge, at that time, also denied Martz' request for visitation and directed that Martz file a motion for visitation outlining how he was "going to be able to orchestrate [visitation] at the prison."
Martz filed a timely appeal from this order. Janicki failed to file a brief, and an order suppressing the filing of a brief on her behalf was entered by the Clerk of the Appellate Division on October 11, 2006.
On appeal defendant raises the following points for our consideration:
THE TRIAL COURT ERRED WHEN IT DID NOT DISMISS OR ADJOURN THE HEARING AFTER ELIC[I]TING THAT NOTICE HAD NOT BEEN GIVEN TO THE DEFENDANT. (Raised Below).
THE TRIAL COURT ERRED WHEN IT DID NOT ADJOURN THE HEARING FOR DEFENDANT TO CONSULT WITH OR SECURE COUNSEL OR FOR CHILD'S PROSPECTS OF REPRESENTATION. (Partially Raised Below).
THE TRIAL COURT ERRED IN CHANGING THE PRIOR CUSTODY AGREEMENT WITHOUT FOLLOWING THE INVESTIGATION AND AWARD PARAMETERS AS WELL AS FAILING TO CITE WRITTEN OR ORAL FINDINGS AND CONCLUSIONS. (Not Raised Below).
THE TRIAL COURT ERRED IN DENYING DEFENDANT VISITATION, TELEPHONE CONTACT AND SUPPORT SUSPENSION APPLICATION. (Raised Below).
We agree that the trial court erred in going forward with the hearing despite learning that defendant had not received notice of Janicki's motion. We therefore reverse the order granting Janicki sole custody of Amanda, and remand the matter for a new hearing. Upon remand, if defendant is still incarcerated, he may file the appropriate motion seeking visitation while incarcerated, which can be addressed at the time of the custody hearing. We briefly add the following.
The right of a parent to enjoy a relationship with his or her child is considered fundamental and is constitutionally protected. In re Adoption of Children by L.A.S., 134 N.J. 127 (1993). Thus any interference with this constitutionally protected right implicates certain procedural safeguards. To that end, a parent has a constitutional right to due process when a change in the custody of a child has been requested, including the right to adequate notice and a fair opportunity to be heard. In re Registrant, C.A., 146 N.J. 71, 93-94 (1996); Div. of Youth & Fam. Servs. v. M.Y.J.P., 360 N.J. Super. 426, 464 (App. Div.), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S.Ct. 1176, 157 L.Ed. 2d 1207 (2004); Schuyler v. Ashcraft, 293 N.J. Super. 261, 281-84 (App. Div. 1996) (voiding under federal Parental Kidnapping and Prevention Act and Uniform Child Custody and Jurisdiction Act custody order entered without notice). These protections are not diminished by the status of a parent as an incarcerated individual. See In re Adoption of Children by L.A.S., 134 N.J. at 135-43. Incarceration is merely a factor that courts must consider as materially bearing upon the capacity of a parent to care for his or her child. Id. Since Martz was not afforded the appropriate procedural protections, the order granting sole custody of Amanda to Janicki must be reversed.
Finally, Martz, citing to Scalchi v. Scalchi, 347 N.J. Super. 493 (App. Div. 2002), urged that he was entitled to counsel in connection with these proceedings. Scalchi involved the right to assigned counsel in child support enforcement proceedings. The court found that no such right existed. The holding in Scalchi was abrogated in Pasqua v. Council, 186 N.J. 127 (2006), where the Court held that indigent child support obligors facing incarceration are entitled to appointment of assigned counsel. Likewise, indigent parents charged with abuse or neglect or facing termination of all parental rights are also entitled to appointment of assigned counsel. Crist v. N.J. Div. of Youth & Family Servs., 135 N.J. Super. 573, 575 (App. Div. 1975).
Here, Martz is involved in a private custody dispute with the mother of his child. The outcome of this proceeding will decide what, if any, role Martz will have in making major decisions regarding Amanda's welfare. NuFrio v. NuFrio, 341 N.J. Super. 548 (2001), but will not terminate his legal rights as Amanda's father nor subject him to incarceration. Consequently, he is not entitled to appointed counsel.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
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