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Muniz v. Castrillo


June 28, 2007


On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Sussex County, Docket No. FM-19-409-06.

Per curiam.


Argued: April 25, 2007

Before Judges Cuff, Fuentes and Baxter.

Plaintiff Beliris Muniz received a promotion to a senior executive position for General Motors in Mexico City, Mexico. With her former husband's consent, she left her home in Morris County to assume her new position with the couple's fourteen year old son. Their sixteen year old son remained in New Jersey with defendant Juan J. Castrillo on a temporary basis consistent with the parties' agreement. Plaintiff appeals from the October 16, 2006 order that prohibits the parties' youngest son from leaving the United States, and continues the joint custodial arrangement but transfers physical custody from plaintiff to defendant. The order further allows plaintiff to "revisit this issue if she returns to live in the United States."

Plaintiff raises various procedural and substantive objections to the October 16, 2006 order. She argues that the role of an attorney brought into this matter by the motion judge was ill-defined and unsupported by any authority. Plaintiff also argues that the judge failed to comply with the provisions of Rule 5:8-6 in conducting an in camera interview of the youngest child. She also contends that the motion judge erred by permitting defendant to invoke N.J.S.A. 9:2-2 following his consent to the removal of the youngest son, failed to conduct a plenary hearing on the issue of the physical custody of the child, and erred in considering a motion by defendant-father following registration of the existing order of custody pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act. We accelerated this appeal and now reverse and remand for further proceedings consistent with this opinion.

The essential facts are not in dispute. The parties married on October 4, 1986, in Puerto Rico. The parties had two children: J.M., who is now eighteen years of age, and H.A., who is now sixteen. Defendant moved to Florida in the fall of 1990 and plaintiff and the oldest child followed him in January 1991. The parties' youngest son was born in October 1991. The parties were divorced on November 10, 1994; plaintiff received physical custody of the children.

Plaintiff has been employed by General Motors for a considerable period of time. In February 1988, plaintiff was transferred to Atlanta, Georgia. Both children relocated with her with defendant's consent. In July 1999, plaintiff was transferred to Detroit, Michigan. The boys relocated with her with defendant's consent. Plaintiff was transferred to New Jersey in June 2000. Once again, the boys relocated with plaintiff with defendant's consent. Each move represented a promotion for plaintiff. In 2002, defendant moved to New Jersey to be closer to his children.

On February 1, 2006, plaintiff was transferred to Mexico for a three-year assignment. The oldest son did not want to go but the youngest did want to go with plaintiff. Defendant provided his written consent to the removal of the parties' youngest son; the oldest son remained in this State with defendant.

Court involvement in the custodial arrangements of this family commenced when plaintiff became concerned that the oldest child was not under adequate supervision. Citing poor grades, an automobile accident, reports of partying and card playing, plaintiff filed a motion to allow him to join her in Mexico. At the same time, plaintiff sought to domesticate a foreign judgment of divorce, modify child support, and establish child support arrears. Defendant responded with a motion requesting primary residential custody of both sons, a "Holder"*fn1 hearing, and modification of child support consistent with the custody of the children. By order dated April 28, 2006, a Family Part judge set a hearing date to consider plaintiff's removal motion, and ordered the parties to mediate the removal issue with a designated attorney. The order also provided that the judge would interview the oldest son regarding the proposed relocation. The order also addressed other issues such as child support and medical expenses not before us on this appeal.

On July 11, 2006, the parties returned to court with their attorneys. With the assistance of the attorney designated in the April 28 order, the parties resolved certain issues. The scope of this agreement is part of the issues in this appeal; therefore, we quote from the summary of this agreement spread on the record.

Number one, [plaintiff] is withdrawing her motion to compel her son . . . [J.M.] to relocate to Mexico with her. Instead, . . . the parties have agreed that they will abide the decision of both boys as to . . . whether they want to go to Mexico with [plaintiff] or not now or in the future.

Right now both boys are home for summer vacation with their father. [H.A.] was previously in Mexico with [plaintiff] from February 1st of this year until Thursday of last week. He will stay here until August 20 when both boys will return to Mexico to be with [plaintiff] until September 3rd when they will return or not return to New Jersey as they decide.

It seems today that [J.M.] will return to (sic) Mexico to commence his senior year at Sparta High School. [H.A.] has indicated a desire to do that, but it's a very fresh decision and, frankly, I don't know whether that will stick or not.

So both parents are going to abide his decision on that. If he returns, he'll start his freshman year at Sparta High School. If he stays in Mexico with mom, he'll re-matriculate at the West Hill School, which he's supposed to start in late August.

Contrary to the terms of this agreement, the oldest son did not travel to Mexico on August 20 and the youngest son did not return to New Jersey on September 6. Plaintiff asserted that the youngest son expressed a desire to stay in Mexico. Plaintiff freely admitted in her certification in opposition to defendant's order to show cause to return the parties' youngest son to this State and to enforce the July 11 agreement that their youngest son was ambivalent about his residence and changed his mind frequently.

On September 22, 2006, the judge ordered the youngest son to be returned to this State by September 29 and further required plaintiff to demonstrate why he should not remain in this State. On September 29, the judge refused plaintiff's request that the youngest son be interviewed by a mental health professional but suggested that plaintiff should undergo a mental health evaluation. Plaintiff produced the youngest son for an interview with the judge on October 16. The parties submitted suggested questions. Following an hour-long interview, the judge informed the parties that he had interviewed the child and that he did not want to return to Mexico. He stated:

He hates living in Mexico and he claims, essentially, that he's been held a prisoner in Mexico by his mother, who has refused to permit him to return to New Jersey, against his will. He wants to stay here in New Jersey, live with his father and brother, and he wants all of his personal belongings returned to him. He does not want to visit with his mother in Mexico, as a result of what has transpired, and he is afraid that if he goes back to Mexico again that he will be held a prisoner there again. He has found living in Mexico to be a rather unpleasant experience.

Finding that the parties agreed on July 11 that the youngest son would return to this State in September, he enforced the agreement. He rejected plaintiff's argument that a plenary hearing was required. The judge also denied plaintiff's application for a stay.

We commence our consideration of the several issues presented in this appeal with the role of the attorney designated in the April 28, 2006 order. Paragraph 3B of the April 28 order provides that "the parties shall mediate the relocation issue with Damiano Fracasso, Esq. forthwith." On July 11, the attorneys for both parties acknowledged that Fracasso "worked very hard" with the parties to reach the accord spread on the record that day. At the September 29 hearing, defendant's attorney reported to the judge that Fracasso believed that he was serving as a parenting coordinator. The transcript of the April 28 hearing reveals that the judge used the terms interchangeably. When discussing the order to be entered, however, the judge stated that he would appoint a parenting coordinator "to give it a shot at mediation with counsel present." By letter to the judge dated September 11, 2006, Fracasso requested clarification of his role. He specifically questioned whether his appointment included conflict resolution and the authority to interview the parties' youngest son.

Plaintiff argues that Fracasso overstepped the bounds of his role as a mediator. If Fracasso was not appointed to serve as a mediator, a subsidiary issue arises regarding the authority of the trial judge to appoint a parenting coordinator.

Rule 1:40-5(a)(3) specifically provides that a mediator involved in a custody or parenting time dispute "may not subsequently act as an evaluator for any court-ordered report nor make any recommendation to the court respecting custody and parenting time." Plaintiff asserts that the September 11 letter from Fracasso to the judge should be characterized as a report or recommendation prohibited by the rule. We disagree. This letter is no more than a request for instructions and a clarification of his role.

If, however, Fracasso functioned as a parenting coordinator, it is apparent that this appointment was not authorized by the rules governing practice in the Family Part at the time of his appointment. On April 7, 2007, almost one year after Fracasso was appointed by the judge, the Acting Administrative Director of the Courts announced a pilot program and guidelines for a Parenting Coordinator Pilot Program in four vicinages. Parenting coordinator guidelines, N.J. Lawyer 38-39 (April 16, 2007). The Morris/Sussex vicinage is one of the four vicinages that will participate in the pilot project that is to commence on July 1, 2007.

According to the operational details of the Parenting Coordinator Pilot Program recently approved by the Supreme Court, a parenting coordinator may be appointed after a parenting plan is in place and may make recommendations to the parties or their attorneys to implement the parenting plan. In addition, an attorney may be appointed as a parenting coordinator but only with the consent of both parties. Id. at 38.

We note that the pilot project does not commence until July 1, 2007. Furthermore, the Supreme Court has expressed reservations at least twice about formally integrating the role of parenting coordinator in the panoply of available Family Part remedies. Ibid. On the other hand, we know from anecdotal evidence that the practice of appointing parenting coordinators has been used in various vicinages for some time and the Supreme Court has never prohibited the practice. Supreme Court Committee on Family Practice Out of Cycle Report 2004-2007, at 31-33 (January 17, 2006). Therefore, we are not prepared to set aside the October 16 order due to the designation of Fracasso as a parenting coordinator.

The central issue in this appeal is the order barring removal of the youngest son from New Jersey to Mexico. Whether we characterize this matter as a removal or a change of custody, the effect for plaintiff and the youngest son is virtually the same. After fourteen years, defendant is now the primary residential parent of the youngest son, plaintiff is a visitor, and she must return to this country before she can be considered the custodial parent of her youngest son. We hold that a plenary hearing was required to fully address the myriad issues implicated by plaintiff's relocation to Mexico and her desire to keep her youngest son with her.

The issue of removal of a child from this State by a custodial parent has been the subject of considerable litigation. N.J.S.A. 9:2-2 bars removal of children from this State without their consent, if they are of suitable age to signify consent, or without the consent of the other parent. The statute reflects the desirability of a child having the nurture, support and guidance of both parents, even when the parents are no longer a marital unit. Baures v. Lewis, 167 N.J. 91, 110 (2001); Cooper v. Cooper, 99 N.J. 42, 50 (1984). The custodial parent, however, need not choose between her child or a vocational opportunity, if the other parent consents to the move or the move is in the best interests of the child. Baures, supra, 167 N.J. at 96-97, 112.

It is well-established that the parent who desires to relocate must make a prima facie showing of "a good faith reason for the move and that the child will not suffer from it." Id. at 118. The parent who desires to relocate must also present a visitation proposal because the continuation of the parental relationship with the parent who stays behind is an important factor in the determination whether the child will suffer from the move. Id. at 122. On the other hand, an alteration of visitation patterns alone will not defeat a removal request. Id. at 117. Once this prima facie showing is presented, a court must consider twelve factors in any assessment of whether to permit removal of a minor child. Id. at 116-17. Finally, a move to another country is not a de facto bar to removal. MacKinnon v. MacKinnon, ____ N.J. ____, ____ (2007) (slip op. at 21). Indeed, even removal to a country that is not a signatory to the Hague Convention, such as Japan, is not an obstacle to removal. Id. at ____ (slip op. at 18).

Here, there was no consideration of plaintiff's showing of good faith and a viable visitation plan and the fact that defendant initially gave his consent to the removal of his youngest son, as he had done on three previous occasions. Plaintiff also made a facial showing that the move was in good faith and that her son would not suffer from the move.*fn2 In fact, the child had resided with his mother in Mexico for several months before plaintiff expressed concerns about her oldest son and defendant revoked his consent. Rather, the decision in this case seems to have been driven by the so-called consent agreement fashioned in July, and the judge's assumption that the wishes of the youngest son should be dispositive of whether he would return to Mexico with his mother.

To be sure, the resolution of disputes by the litigants is encouraged and is of particular value in family disputes. Lehr v. Afflitto, 382 N.J. Super. 376, 394 (App. Div. 2006). When enforcement of an agreement is at issue, care must be taken to determine the nature and extent of any agreement. Rolnick v. Rolnick, 262 N.J. Super. 343, 351-52 (App. Div. 1993). Here, an examination of the July agreement does not suggest a definitive resolution to the residence of the youngest son.

Furthermore, this record also does not allow any basis to discern whether the child was "of suitable age" to be the ultimate decision-maker regarding his residence. We recognize that relocation, let alone removal from one country to another, is a challenge for a child in his early teens. We also recognize that many of the reported removal cases involve younger children. See, e.g., Levine v. Bacon, 297 N.J. Super. 224 (App. Div. 1997) (nine year old child), aff'd, 152 N.J. 436 (1998); Horswell v. Horswell, 297 N.J. Super. 94 (App. Div. 1997) (five and seven year old children). Nevertheless, maturity is not necessarily associated with chronological age. Moreover, in this case, there is more than a suggestion of undue influence on the child in shortly before the interview with the judge.

Therefore, we reverse and remand for a plenary hearing on the issue of the removal and the consequent change of custody. Due to this disposition, we need not address plaintiff's argument that the judge failed to comply with Rule 5:8-6 during his interview with the youngest son other than to direct that any further interview with the child shall comply with the rule, including the receipt of proposed questions, an explanation why any questions are not posed to the child, and the stenographic or recorded recordation of the interview.

Reversed and remanded for further proceedings consistent with this opinion. We need not address plaintiff's request that the matter be assigned to a different judge. According to the General Assignment Order for the 2007-08 Term, the judge has been assigned to another trial division. We do not retain jurisdiction.

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