On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. FD-09-2410-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 16, 2009
Before Judges Axelrad and Sapp-Peterson.
Defendant Angela Spratley appeals from the June 24, 2008 order of the Family Part denying her application to modify a prior order that awarded custody of her six-month-old son to plaintiff, the child's biological father, and the October 20, 2008 order denying her motion for reconsideration. We affirm as modified and remand for further proceedings.
Plaintiff appeared at the June hearing with counsel; appellant appeared pro se. Appellant was the only one who testified. She explained that she had relocated from Colorado, where she lived with her parents and nine-year-old son, and moved in with plaintiff and his family in early January 2008. Their son was born later that month. She claimed she was their son's primary caregiver. According to appellant, she was "evicted from the household" around May 22, 2008, and was essentially homeless and staying with friends, as a result of which plaintiff's application for custody was granted. It appears from the transcript the court had also established a visitation order for appellant of every other Saturday and Sunday from l0:00 a.m. to 4:00 p.m. (no overnight).
Appellant claimed she was told to address the court when she had stable living conditions, and thus filed an application to modify custody when she was able to rent a room in a three bedroom condominium located about twenty blocks from plaintiff's residence. Appellant provided the court with a copy of her lease, effective June l7, 2008. She explained the particulars of the apartment and her roommates, and that she moved there from her prior address because it was in a safer neighborhood. Appellant claimed plaintiff worked long hours, including evenings and weekends, and his mother was the primary caretaker.
Appellant also related that plaintiff failed to communicate with her about issues involving their son. Appellant believed it would be better for their son to be in the infant room in the childcare center where she worked and to go home with her when she left at 5:30 p.m. As an alternative to complete residential custody, appellant sought shared residential custody with primary residence with her, i.e., all day Monday, Wednesday and Friday, during which she would enroll her son in the daycare center where she worked at a fifty-percent discounted tuition, and alternating weekends. Appellant further informed the court of her plan to have her nine-year-old son come live with her after the completion of the school year in July.
The judge acknowledged appellant now had an apartment and was working, but noted, because of her "number of addresses," he had concerns about her ability to provide a safe, stable home for the parties' son. He found appellant did not meet her burden of proof establishing a significant change of circumstances and thus denied her application to modify custody. The judge also denied appellant's request to expand parenting time to overnight, finding appellant's "housing arrangements seem to be somewhat questionable" and again noting a "major concern" about the "lack of stability" in appellant's life. The judge never responded to appellant's question of "[w]hen will it not be questionable?" The court's decision was memorialized in an order, providing: (1) appellant's application for custody was denied; (2) the parties had joint legal custody with primary residence care to plaintiff; (3) appellant was to be kept informed of her son's significant medical, social and educational events and his pediatrician's information; and (4) the child was not to be removed from New Jersey without permission of the court or other parent.
Appellant retained counsel and moved for reconsideration. She certified, in part, that shortly after their son's birth it became apparent the parties' relationship was coming to an end; however, she tried to stay together for their son's sake. She further contended that after plaintiff and his family forced her to leave their home, she would have preferred to return to Colorado but she remained in New Jersey, although she had "no family and very few friends here" because she recognized that moving would make it impossible for her and plaintiff to co-parent their son. Appellant implored the court to conduct a home evaluation to determine that her present living environment was suitable for an infant and again requested a shared parenting plan in which the parties' son could spend equal time with each of them. She re-iterated plaintiff's working and caretaking arrangement and asked the court to reconsider allowing her to bring the baby to the daycare center where she worked and have the parties alternate where he spends the night. Appellant also stated that appellant's parents' home was currently listed for sale, his father relocated out of the country and once the house was sold, his mother was going to follow. Thus, plaintiff would then be in "transition" as he would be moving to a new apartment and would no longer have his mother's caretaking assistance.
Plaintiff responded, in pertinent part, that their son has been in day care from the outset and is thriving. Following oral argument on August 20, 2008, the court denied appellant's motion.
Appellant argues that the "tender years" doctrine plays a significant role that supports custody being awarded to her. According to appellant, the court erred in failing to take into consideration that custody of a young child "is normally placed with a mother, if fit," M.P. v. S.P., 169 N.J. Super. 425, 435 (App. Div. 1979) (quoting Esposito v. Esposito, 41 N.J. 143, 154 (1963)), and made no findings of fact that would indicate appellant should have been denied custody of her infant for being unfit. Moreover, appellant urges, the court seemed to disregard the fact that plaintiff was able to achieve custody by displacing appellant from the family home and putting her in a homeless situation for a short period of time, creating her "transitional" dilemma. Appellant emphasizes that she expeditiously found stable housing in a safe neighborhood and contends the court erred in disregarding evidence of her suitable living arrangement, caretaking plan for the infant while she was at work, and particularly, her courage to rebound from a very distressful situation and gain her composure to reunite with her child. The court then made limited findings to justify its conclusion that appellant was unable to establish sufficient changed circumstances to modify the custody order entered the prior month. Appellant urges the court compounded its error by failing to consider an expanded visitation schedule or allow her overnight visits.
We do not have a record of what transpired prior to the June 24, 2008 hearing other than that referenced at the hearing. However, it is clear the parties' relationship soured after their son's birth and they had discussions and arguments through May regarding whether appellant would leave plaintiff's parent's house, with or without their son. It is immaterial whether appellant was actually forced to leave or whether the situation became so intolerable that she believed she could no longer remain there. The fact remains that she left under unpleasant circumstances and the infant remained in the home with his biological father, who contemporaneously was awarded residential custody on an order to show cause, apparently based solely on appellant's transient situation.
When appellant came to court a month later, proffering evidence of stability, i.e., a suitable living arrangement and resumption of employment with an integrated caretaking plan, we understand the court's reluctance to transfer residential custody to her, or even allow her shared custody or overnight parenting time. After all, appellant had just moved into the condominium a week or two before the hearing and her roommates, the owner and her ...