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Ali v. Ali

July 8, 2009

TEHMINA ALI, PLAINTIFF-RESPONDENT,
v.
SHAUKAT ALI, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-307-1999.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 3, 2009

Before Judges Lyons and Kestin.

Defendant, Shaukat Ali, appeals from an October 24, 2008, order which, among other things, denied his application to change the custody of his minor son from plaintiff, Tehmina Ali, to him. We affirm.

The relevant facts and procedural history necessary for our consideration of this appeal are as follows.

Plaintiff and defendant were divorced by order dated December 31, 2002. At the time of the divorce, two of the parties' three children were minors, a daughter born in 1987, and a son born in 1993. Plaintiff was awarded custody of the minor children and defendant was required to pay child support. The custody of the minor son is the subject of this appeal. Since the parties' divorce, defendant has filed multiple motions in the Family Part, challenging various aspects of the judgment of divorce. Adverse rulings in the Family Part have similarly led to multiple appeals to us.

In this particular matter, defendant filed a motion on September 24, 2008, seeking to change the custody of his minor son from plaintiff to him. Defendant filed an extensive certification in support of his application. The certification primarily outlines plaintiff's failings regarding her efforts to ensure the son receives the appropriate religious training and defendant's efforts to provide that to him. The certification is noteworthy in that it has over a hundred paragraphs. Approximately one-third of the paragraphs relate to plaintiff's alleged failings between the time period of 1998 and 2002, the time of the divorce. The balance of the certification relates to time frames following the divorce. Few issues, if any, are raised in the certification, other than matters surrounding the son's religious education. Defendant argues that, based on plaintiff's failure to provide diligent efforts to assure their son's proper religious education, custody should be changed and granted to him.

In response, plaintiff did not file a certification, but a letter brief from her counsel, arguing that the claims regarding the son's religious education are years old, do not demonstrate a change in circumstances and, if the court were so inclined to find a genuine issue of material fact, the case should be referred to mediation pursuant to Rule 5:8-1.

The motion court stated that the problem of the son's religious training is one that has: been a long standing problem, a problem going back, according to [defendant's] certification, back to 1997 and 1998 because of the fact that it's a long standing problem, it is something that has not arisen recently, the court finds that it's not a substantial change of circumstances warranting a change of custody or even a hearing.

The court went on to note that the certification addressed the issue of religious education solely and not all of the other factors that a court must consider in making a custody determination. The motion court, therefore, ordered that plaintiff shall provide religious upbringing to the son of the marriage as it was during the marriage, but the court found there to be no genuine issue as to the custody of the son and that custody should continue with plaintiff.*fn1

The issue on appeal, therefore, is whether there was a sufficient showing for a change of custody.

We recently had occasion to review the law regarding a change in custody. In Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007), we stated:

In custody cases, it is well settled that the court's primary consideration is the best interests of the children. Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). The court must focus on the "safety, happiness, physical, mental and moral welfare" of the children. Fantony v. Fantony, 21 N.J. 525, 536 (1956). See also P.T. v. M.S., 325 N.J. Super. 193, 215 (App. Div. 1999) ("In issues of custody and visitation '[t]he question is always what is in the best interests of the children, no matter what the parties have agreed to.'") (internal quotation marks omitted and alteration in original) (quoting Giangeruso v. Giangeruso, 310 N.J. Super. 476, 479 (Ch. Div. 1997). Custody issues are resolved using a best ...


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