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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...