July 27, 2007
REGINA GORDON, PLAINTIFF-APPELLANT,
VINCENT THARRINGTON, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Essex County, FD-07-1101-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: June 5, 2007
Before Judges Axelrad and Gilroy.
Plaintiff Regina Gordon appeals from the January 8, 2007 order of the Family Part which: (1) transferred residential custody of her nine-year-old son Terrance, born October 15, 1997, to his natural father, defendant Vincent Tharrington; and (2) permitted defendant to remove the child from New Jersey to Ohio, where defendant had lived for the past three years. We stayed the order and accelerated the appeal. We reverse.
The parties are not married. In January 1998, an order was entered granting the parties joint legal custody of three-month-old Terrance, with physical custody to the mother. The child support order was entered the same year directing the father to pay $93 per week. In October 2002, an order was entered increasing the child support, by directing father to pay an extra $40 per week toward his $6000 arrearages. In the fall of 2003, defendant relocated to Ohio and moved to amend the visitation schedule. Defendant's mother, who resides in Essex County, also filed a motion for visitation. In May 2004, the court granted the paternal grandmother visitation, apparently bi-weekly, and provided defendant with a new schedule that included visitation in Ohio.*fn1 In March 2005, the grandmother filed an application to enforce visitation and defendant filed an application alleging plaintiff was not permitting Terrance to visit in Ohio. As a result, the court continued the prior visitation order with the grandmother and modified defendant's visitation to specifically include the last two weeks in July and the first two weeks in August.
In March 2005, plaintiff was laid off from her job with a law firm and, as a result, lost her apartment. From August 2005, until September 2006, plaintiff, Terrance, and plaintiff's fourteen-year-old daughter lived with a friend and nine other people in a house in Jersey City. From October to December 2006, they lived in Harmony House, a transitional apartment/shelter in Newark, run by New Community Corporation, where Terrance and his half-sister shared a room and plaintiff slept in the living room. Then, on December 6, 2006, plaintiff and her two children moved into a two-bedroom apartment in Newark, where the children each had their own bedroom and plaintiff slept on the couch. Plaintiff regained employment in Little Ferry, where she earns approximately $10.90 per hour. Although the moves required Terrance to attend three different schools for the first, second and third grades, he has continued in the Newton Street School in Newark where he attended third grade while in Harmony House.
On September 20, 2006, the paternal grandmother filed an order to show cause (OTSC) seeking temporary custody of Terrance, alleging she had recently learned that: (1) Terrance had been living in a homeless shelter with plaintiff and his half-sister; (2) plaintiff was unstable, living with various friends and relatives over the past two years while receiving child support from defendant; and (3) plaintiff was neglectful and had been previously reported to the Division of Youth and Family Services. The emergent application was denied, and a Risk Assessment by the Probation Department was ordered. A custody hearing was scheduled for November 15, 2006.
Apparently there was some confusion and defendant was under the impression the matter was going to be heard on November 3, 2006, so he and his mother appeared in court that day. The grandmother also brought Terrance because she had picked him up for visitation. Neither plaintiff nor her attorney appeared, believing the matter was scheduled for November 15. Because defendant had traveled to New Jersey from Ohio, the court attempted to resolve the issues that day. The judge went on the record with defendant and the paternal grandmother in the courtroom and conducted a telephone conference with plaintiff's attorney, who was on a cell phone in his automobile, and plaintiff, who was on a cell phone at a bus stop. Prior to the phone conversations, however, the grandmother made comments that Terrance was in a "shelter," that plaintiff had been "involved with DYFS too, for abuse of him" and that "she's been on the go and unstable."
The judge was only able to hear a limited response from plaintiff because of the poor connection. After the judge lost contact with the mother, she advised the attorney she was going to interview Terrance because he was in court. The judge conducted an in camera interview with the child; for the most part, the transcript does not record the child's responses to the judge's questions but transcribes them as "inaudible." It does not appear, however, that Terrance stated to the judge that he would prefer to live with defendant.
During the colloquy on November 3, it was brought up by plaintiff's counsel that only the paternal grandmother had sought custody. Following the proceeding, defendant went to the Clerk's Office and filed an OTSC seeking temporary custody of his son, making similar allegations as the paternal grandmother and noting the prior living arrangement in Jersey City was so crowded that Terrance had to sleep on the floor. The order was marked as returnable on November 15, 2006, although a signed copy is not in the record.
On November 15, 2006, defendant appeared by telephone, and plaintiff and her counsel and the grandmother appeared in person. Plaintiff argued she should retain physical custody of Terrance since she was the child's primary caregiver his entire life and explained she was in transitional housing due to defendant's failure to consistently pay child support, her recent loss of employment and the exhaustion of her unemployment benefits. The court was informed that plaintiff was moving to permanent housing in two weeks. The court ordered a full Best Interest investigation. The reports were filed prior to the continuation date of January 8, 2007.
On January 8, 2007, the judge reviewed the Best Interest report prepared by Essex County Probation Officer Berlinda M. Alexander, and the Ohio Home Study Report. Alexander recommended that custody be transferred to defendant, explaining in limited testimony that her conclusion was based on the instability of plaintiff's residency as related by defendant; that there were some problems with the relationship between Terrance and his older half-sister, as he thought she bossed him around; and that Terrance stated he had not seen defendant much and missed him and wanted to spend more time with him. The judge also took extremely limited testimony from the parties and heard argument from plaintiff's attorney. Following the colloquy, the judge rendered a decision changing physical custody of Terrance to defendant and permitting him to remove the child to Ohio. The judge found both parents fit, evaluated the statutory criteria for deciding child custody set forth in N.J.S.A. 9:2-4(c), and concluded it was in Terrance's best interests to change custody. The judge gave "some weight" to the child's preference, but the primary focus was on Terrance's safety and stability. The judge commented that she had "concerns about the safety of the child living in a homeless shelter, living in different [families'] homes over a period of years and . . . sleeping on the floor," "some safety concerns about the child in the current status," and "some concern about the safety of the child because I think the mother was a little unstable, so I'm going to favor the father." The judge also found it was disruptive and not in Terrance's best interests to have attended three different schools. The judge favored the father with stability because "the mother has been unstable for quite -- a year or two or three" while defendant was employed and his fiancée, with whom he was living, had a room in her three-bedroom house set aside for Terrance.*fn2
The judge then found that Terrance would receive equal, if not better educational opportunities in Ohio, and considered Terrance's preference as relayed by the probation officer, concluding under Baures v. Lewis, 167 N.J. 91 (2001), there was a good faith reason to let Terrance relocate to Ohio to live with his father and that it would be in Terrance's best interest to do so. A discussion ensued regarding parenting time and transfer of the child. The judge denied plaintiff's request for a stay. The decision was memorialized in an order of January 8, 2007.
The court supplemented its oral decision with a written opinion dated February 8, 2007. In the supplemental opinion, the court included the Chen v. Heller, 334 N.J. Super. 361, 380 (App. Div. 2000), criteria for custody modification for the movant to demonstrate a "substantial change in circumstances" from the current custody arrangement and that "the best interests of the child would be better served by a transfer of custody," finding defendant met that burden for essentially the same reasons expressed on the record. The court gave "great deference" to defendant regarding Terrance's safety, stability and needs because of plaintiff's inability to maintain stable shelter for her children during the past two years despite defendant's substantial compliance with his support obligation and plaintiff's receipt of child support for her daughter, giving her a combined $700 per month.*fn3
On appeal, plaintiff argues the court used the wrong standard in determining the change of custody by applying the standard for initial custody determinations of both parties having equal rights to their children rather than applying the standard for a change of custody of "a substantial change in circumstances and the best interests of the child would be served by a transfer of custody." Plaintiff also contends the court misstated the Baures "good faith" standard for removal of a child out of state and that defendant did not proffer or satisfy a "good faith" reason for his move to Ohio. Plaintiff further argues the court violated her due process rights and became biased against her: (1) by conducting an ex parte colloquy with defendant and the paternal grandmother, albeit on the record, where defendant and his mother made derogatory comments concerning plaintiff, thereby prejudicing the court against her; and (2) by conducting the in camera interview with Terrance without proper notice to plaintiff and her attorney, thus not allowing them the opportunity to submit questions for the court to ask the child. Lastly, plaintiff argues the court erred in determining Terrance stated he had a preference for residing with his father, and by not giving proper weight to her current circumstances of gainful employment and stable independent living quarters.
We believe the judge erred in entering into a colloquy, although it appears accidental, with the defendant and the paternal grandmother on November 3, 2006, and by conducting the interview of Terrance that day without the proper notice to plaintiff and her attorney. See R. 5:8-6 (counsel shall be permitted the opportunity to submit questions for the court's use during the child interview and the court shall place on the record its reasons for not asking any question thus submitted). We have no doubt the judge's motives were laudable, as she was attempting to accommodate an out-of-state litigant who showed up in court on the wrong date due to a scheduling miscommunication, and handled the matter in open court on the record. However, in doing so, the judge allowed ex parte statements to be made by the movants, who were present in court, which the absent party perceived to be prejudicial and which did not place her on an even footing when she appeared in response to the OTSC on November 15. These procedural errors, however, would have been insufficient to reverse the custody transfer order.
We are satisfied, however, that viewing the court's supplemental opinion as applying the appropriate standard for a transfer of custody and removal, the record does not support the court's finding that defendant demonstrated that a substantial change in circumstances in the current custody arrangement occurred and that Terrance's best interest would be better served by a transfer of custody to defendant and removing him to Ohio. The record is clear that plaintiff has had physical custody and been Terrance's primary caretaker for his entire life. In assessing a claim of changed circumstances, "deference is given to the length and stability of the existing custody relationship." M.P. v. S.P., 169 N.J. Super. 425, 431 (App. Div. l979). The record is devoid of the amount of parenting time and the role that defendant has played in his son's life for these past nine years, although it appears Terrance may have spent four weeks during each of the past two summers in Ohio pursuant to the March 2005 order. The fact that defendant was unaware that plaintiff had moved to Jersey City in August 2005 and his son was living in a crowded house and apparently was sleeping on the floor*fn4 for a year, and the family then moved to transitional housing, seems to indicate a lack of involvement in his child's life or, at least, a lack of communication with him. We query how defendant or, for that matter, his mother who had bi-weekly visitation, could be so unaware of plaintiff's dire financial circumstances and the family's transitional living arrangements for the previous year. It is also surprising that when defendant found out that plaintiff was residing in shelter housing, he did not offer assistance if he was so concerned with his son's welfare. The court should have asked defendant these questions and explored these issues in determining whether the change in residential custody and relocation was in Terrance's best interests.
In determining that defendant, who never had a residential custodial relationship with Terrance, would be more stable than plaintiff, the court also never addressed the fact that defendant has another child in Texas with whom he admits to not having any contact at all. Nor did the court address the nature of defendant's current relationship and explore how Terrance fit into the family dynamic other than to ascertain that defendant and his fiancée have a seven-month-old daughter, they live in the house that his fiancée owns and Terrance would have his own room. Additionally, the Ohio Probation Report does not provide any evidence to support the fitness of defendant to obtain custody of a nine-year-old. It consists of nothing more than a recitation of an interview with defendant and a description of his fiancée's home.
The safety and stability considerations that appear to be at the heart of the court's ruling do not favor a change in custody. There is no record of any instability prior to the span of eighteen months during which plaintiff was laid off, evicted, moved the family in with a friend and temporarily moved to Harmony House, before getting her own apartment and resuming employment. It is unfortunate that plaintiff's financial affairs caused her to live in a crowded house and, for a three-month period, in transitional housing, and for Terrance to attend three different schools in the past four years. However, there is nothing in the record showing there was any adverse effect on Terrance emotionally or educationally, or that he was in any way placed in harm's way during that time. In fact, to plaintiff's credit, she was able to keep her family intact and sheltered during her financial difficulties. Moreover, there is no evidence of a disruption in Terrance's normal activities. To the contrary, plaintiff made certain Terrance was enrolled in and attended school; there is no evidence, or even an allegation, of truancy or problems in school during this period.
Most critically, at the time of the hearing, plaintiff had been living for a month in a two-bedroom apartment, where each of the children had their own rooms, in the same Newark district where Terrance had been attending school. Plaintiff was also gainfully employed, so there was no reason for her to move again or any basis to find her "current" status as questionable. Plaintiff's minor set-back, which was alleviated by the final hearing, did not constitute a substantial change in circumstances to warrant modifying the residential custody arrangement that had been in effect for nine years, nor did defendant demonstrate that it would be in Terrance's best interests at that time for custody to be transferred from mother to father and for Terrance to relocate to Ohio.