On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FD-13-001549-02B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Alvarez.
Although plaintiff Christina M. Fischbach and defendant John C. Skikus were never married, they have a daughter born on November 27, 2001, who is now six years old. Defendant appeals from an order entered on August 20, 2007, while he was incarcerated, denying his motion for supervised visitation and other relief to help him "establish a proper and cohesive father-daughter bond," and granting plaintiff's motion "to relocate to the State of Florida with the minor children" (plaintiff's son and the parties' daughter).
On appeal, defendant makes the following arguments: (1) the trial court violated his constitutional right to due process in denying his motion for visitation; (2) he was not present in court "to argue or defend any issue presented to the trial court"; (3) the trial court erred in granting plaintiff's motion to relocate to Florida without affording defendant an opportunity to be heard; and (4) plaintiff failed to establish good and sufficient reasons for relocating to the State of Florida. In a letter dated October 1, 2007, plaintiff's attorney advised defendant that a copy of his appeal was being sent to plaintiff's "last known address," but plaintiff has not filed any responding papers. Because defendant was not present in court on August 20, 2007, and a plenary hearing should have been held prior to deciding defendant's request for visitation and plaintiff's motion to relocate, we reverse and remand for further proceedings.
"Fundamentally, due process requires an opportunity to be heard at a meaningful time and in a meaningful manner. The minimum requirements of due process, therefore, are notice and the opportunity to be heard." Doe v. Poritz, 142 N.J. 1, 106 (1995) (citation omitted). That did not happen here. At the outset of the proceedings on August 20, 2007, the court noted: "The defendant was not writ'ed out of State Prison for today, and I'm not certain . . . we can proceed." Nevertheless, based upon representations by plaintiff's attorney that plaintiff was "fearful of her life and her children's" lives and that plaintiff's "housing runs out the end of August," the court rendered the following decision:
I'm satisfied under these circumstances that first, even though the defendant was not writ'ed out, first on the plaintiff's request to locate out of State, that the defendant was incarcerated because of his conduct toward these children. And since he's incarcerated he has no ability at this point in time to have parenting time outside of prison.
So the plaintiff is certainly, and she has no place to live in New Jersey, certainly entitled to remove herself and the children to Florida where she can gain employment, become remarried or married, and care for these children. So the plaintiff's application will be granted even in the absence of the defendant, since he's incarcerated. His release date is unknown.
Second, with respect to the notice of motion which was not placed on my motion calendar, it was never served upon the plaintiff. He's seeking parenting time while he is incarcerated. Even if he were here . . . given the fact that the incarceration arose out of the relationship with the children, his application would be and is denied.
However, according to defendant, he received a seven-year sentence for second-degree endangering the welfare of a child after he "smacked" plaintiff's son, not his own daughter, and therefore his incarceration did not arise out of his relationship "with the children." Defendant also claims that after he was arrested and released on bail, he spent the next fourteen months "in one-on-one counseling and participated in parenting class to help me regain a hold of myself and become a better parent." In any event, we have previously indicated that incarceration of a parent, although an important consideration, does not automatically sever a parent's right of visitation. See Fusco v. Fusco, 186 N.J. Super. 321, 326-27 (App. Div. 1982). Instead, the best interests of the child must be the determining factor. Wilke v. Culp, 196 N.J. Super. 487, 497 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985); Fiore v. Fiore, 49 N.J. Super. 219, 225 (App. Div.), certif. denied, 28 N.J. 59 (1958).
Similarly, a custodial parent seeking to relocate to another state must "prove two things: a good faith motive and that the move will not be inimical to the interests of the child." Baures v. Lewis, 167 N.J. 91, 122 (2001). In the present matter, defendant contends plaintiff's purpose in relocating to Florida was "to frustrate and thwart" his efforts to have a meaningful relationship with his daughter. Moreover, evidential support for the move to Florida was lacking.
Under these circumstances, we conclude the motions should not have been decided without the benefit of an evidentiary hearing. See, e.g., Fusco, supra, 186 N.J. Super. 321 (holding that a 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); Pfeiffer v. Ilson, 318 N.J. Super. 13, 14 (App. Div. 1999) (noting that a plenary hearing is necessary when relocation of children is disputed if there are genuine issues of fact regarding "the best interests of the children, interference with parental rights, or the existence of a good faith reason to move").
The order entered on August 20, 2007, is reversed, and the matter is remanded for further proceedings consistent with this ...