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Battle v. Pridgen

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 3, 2008

BERNADETTE BATTLE, PLAINTIFF-RESPONDENT,
v.
GERARD PRIDGEN, DEFENDANT, AND CHERRY BURKE, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FD-09-1240-97.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 25, 2008

Before Judges Fuentes and Gilroy.

Defendant Cherry Burke is the biological mother of a girl identified here as "K." The child was born in September 1992, and is now sixteen years old. Plaintiff Bernadette Battle is Burke's sister. Defendant Gerard Pridgen is K's putative biological father, although his paternity has not been confirmed through genetic testing.

On November 7, 1996, the Family Part entered an order granting custody of K to her aunt Bernadette Battle. K has resided with Battle since that date, approximately twelve years. On May 23, 2007, Burke filed a complaint seeking to regain custody of her daughter. On July 10, 2007, the court dismissed the complaint for lack of prosecution.

Burke re-filed the complaint the following day. The complaint included a certification from Burke in which she stated: "I would like custody of my daughter [K] who doesn't like where she is living and would like to be with me." On August 2, 2007, the matter came before the Family Part; Burke, Battle, and Pridgen all appeared pro se.

Battle testified that she had permitted K to stay with her mother over the summer. The child, now a teenager, wants to live with Burke because she resents Battle's strict rules, i.e., she must be home by 9:00 p.m. After unsuccessfully trying to get Burke to respond to his questions, the trial judge stated: "Ms. Burke is not being responsive. The complaint will be dismissed.*fn1 Custody will remain with Ms. Battle. Mr. Pridgen can make application for a paternity test if he feels it is necessary."

Burke now appeals, filing a single-page letter in lieu of a brief. In this letter, Burke emphasizes that she never abandoned her daughter and wants to take complete responsibility for her. She claims that she is gainfully employed, and has her own residence. The record does not contain a copy of the 1996 order awarding Battle custody of K. We are therefore unable to determine whether Burke's current circumstances are significantly different from 1996. Indeed, Burke, as the appellant, has not articulated a basis for us to interfere with the trial court's ruling.

The burden of proof is on the party seeking to modify a child's custody arrangement. Cosme v. Figueroa, 258 N.J. Super. 333, 338 (Ch. Div. 1992). Burke did not present sufficient evidence before the Family Part to meet her burden of proof.

Affirmed.


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