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Hand v. Hand

March 7, 2007

CHRISTINA HAND, PLAINTIFF-APPELLANT,
v.
JOHN HAND, JR., DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-813-01B.

The opinion of the court was delivered by: Graves, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted January 30, 2007

Before Judges Kestin, Graves and Lihotz.

The parties are divorced with two children, John and Tyler. Plaintiff Christina Hand appeals from an order of April 28, 2006, denying her motion to transfer custody of their two sons from their father to herself. Plaintiff contends the trial court erred when it denied her application to change custody without holding a plenary hearing. We affirm.

Prior to finalizing their divorce, the parties and their attorneys signed a consent order dated May 1, 2001. The consent order stated that John and Tyler were in the custody of their father pursuant to a prior order of February 5, 2001, and it provided that plaintiff was to make weekly child support payments to defendant. Another consent order, dated June 20, 2001, noted that during mediation, the parties had agreed upon a "Family Mediation Agreement/Parenting Plan" (Parenting Plan), dated June 5, 2001, and the consent order required the parties to comply with the Parenting Plan pending further order of the court. Pursuant to the Parenting Plan, which was signed by the parties and their attorneys, the boys are to reside with their father. Plaintiff is entitled to visitation on weekends, and the parties agreed to divide holidays and summer weeks when the boys are not in school. On October 5, 2001, the court denied plaintiff's motion to set aside the consent order dated June 20, 2001.

When the parties were divorced on November 5, 2001, John was eight years old and Tyler was six years old. Pursuant to their "Consent Dual Final Judgment of Divorce," the parties agreed to incorporate their Parenting Plan. Thus, the divorce judgment states that defendant "shall have custody of the two unemancipated children born of the marriage" and that plaintiff "shall continue to pay child support" for the two children.

Preliminarily, we note that plaintiff urged the court to transfer custody of the two boys without the benefit of an investigation by the Family Division (R. 5:8-1), without an investigation by a neutral expert appointed by the court (R. 5:3-3(e)), without a report by a guardian ad litem (R. 5:8B), and without referral to the mediation program (R. 1:40-5), where the parties originally resolved the custody issue. In addition, plaintiff's motion to change custody did not request discovery, and plaintiff did not ask the court to hold a plenary hearing. Plaintiff simply asked for a change of custody. Nevertheless, because of our parens patriae responsibility to protect the welfare of children, we will consider plaintiff's present contention that the trial court erred in denying her motion to change custody without conducting a plenary hearing.

In custody cases, it is well settled that the court's primary consideration is the best interests of the children. Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). The court must focus on the "safety, happiness, physical, mental and moral welfare" of the children. Fantony v. Fantony, 21 N.J. 525, 536 (1956). See also P.T. v. M.S., 325 N.J. Super. 193, 215 (App. Div. 1999) ("In issues of custody and visitation '[t]he question is always what is in the best interests of the children, no matter what the parties have agreed to.'") (internal quotation marks omitted and alteration in original) (quoting Giangeruso v. Giangeruso, 310 N.J. Super. 476, 479 (Ch. Div. 1997)). Custody issues are resolved using a best interests analysis that gives weight to the factors set forth in N.J.S.A. 9:2-4(c). V.C. v. M.J.B., 163 N.J. 200, 227-28, cert. denied, 531 U.S. 926, 121 S.Ct. 302, 148 L.Ed. 2d 243 (2000).

A party seeking to modify custody must demonstrate changed circumstances that affect the welfare of the children. Borys v. Borys, 76 N.J. 103, 115-16 (1978); Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958). A plenary hearing is required when the submissions show there is a genuine and substantial factual dispute regarding the welfare of the children, and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute. Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976); see Lepis v. Lepis, 83 N.J. 139, 159 (1980) (holding "a party must clearly demonstrate the existence of a genuine issue as to a material fact before a hearing is necessary," and noting that "[w]ithout such a standard, courts would be obligated to hold hearings on every modification application"). See also R. 5:8-6 (requiring the court to "set a hearing date" if it "finds that the custody of children is a genuine and substantial issue").

In some cases, there is clearly a need for an evidentiary hearing to resolve custody or parenting time issues. See, e.g., P.T., supra, 325 N.J. Super. at 215, 222 (evidentiary hearing required prior to entry of order of joint custody and unsupervised visitation with father who had been accused of sexually abusing the child); Mackowski v. Mackowski, 317 N.J. Super. 8 (App. Div. 1998) (holding that father's motion to transfer custody of sixteen-year-old daughter, who repeatedly expressed preference to live with father, should not have been decided without a plenary hearing); Fusco v. Fusco, 186 N.J. Super. 321 (App. Div. 1982) (holding that plenary hearing was necessary to determine nature and extent of visitation to be granted to father who was serving a thirty-two-year prison term for first-degree murder). See also Dorfman v. Dorfman, 315 N.J. Super. 511, 518 (App. Div. 1998) (noting that detailed and documented evidence demonstrating that "child was experiencing significant behavioral problems" warranted court intervention "to at least order an investigation of the problem"). In many cases, however, where the need for a plenary hearing is not so obvious, the threshold issue is whether the movant has made a prima facie showing that a plenary hearing is necessary. This is such a case.

On April 28, 2006, both parties were present in court with their attorneys when plaintiff's motion to transfer custody was argued. The transcript of the proceeding confirms that the motion judge conscientiously considered the parties' submissions, and he took the opportunity to direct questions not only to counsel but also to the litigants. The trial court ultimately concluded that plaintiff had failed to establish a prima facie case that there was a genuine and substantial factual dispute regarding the welfare of the children, and we are satisfied the record adequately supports that determination.

In support of her motion to change custody, plaintiff asserted that "during the time we were married the [d]efendant's friends and social life came first and family second." Plaintiff also certified that "[d]efendant is an alcoholic. He drinks on a daily basis and frequents bars. There are many times that the children are left to care for themselves while the [d]efendant is out with his friends either fishing or hanging out in bars." Plaintiff also advised the court that defendant is "irresponsible," and she certified that ...


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