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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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