On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-6001-01.
The opinion of the court was delivered by: Messano, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 15, 2009
Before Judges Grall, Messano and LeWinn.
This case presents a question of first impression in this State. In particular, must a parent seeking modification of a court order regarding custody of her child bear the threshold burden of establishing "changed circumstances that affect the welfare of the child[,]" Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007), when the court-ordered parent of primary residence (PPR) is a member of the United States military about to be deployed for a year away from home? We conclude that the moving party is not entitled to a parental presumption that modification is warranted solely because of the PPR's military deployment. However, we also conclude that once an otherwise fit parent demonstrates that the PPR is facing deployment for a significant period of time, in our view, one year or more, she has demonstrated a prima facie case and is entitled to a plenary hearing as to disputed material facts regarding the child's best interests, and whether those best interests are served by modification of the existing custody order.
We therefore reverse the order under review to the extent that it dismissed defendant's motion without prejudice, and remand the matter to the trial court for further proceedings consistent with this opinion.
Plaintiff and defendant were married on January 11, 1997, and divorced on December 11, 2001. Their union produced a son, Billy, who was born in 1997.*fn1 Plaintiff's subsequent application in 2002 to settle disputes over custody, parenting time and support resulted in an order setting the matter down for trial. While it is unclear whether a plenary hearing was conducted on all issues, the court entered a subsequent order, dated July 26, 2002 (the 2002 order), that provided in pertinent part: 1) "joint legal custody" would continue; 2) plaintiff would be the PPR "except [defendant would] be the [PPR]... during school summer vacations"; 3) "[d]uring school summer vacations... [defendant would] have custody... approximately 70% of the summer vacation and [plaintiff] approximately 30% of the time"; and 4) defendant would have "the child for [three] weekends each month as determined by the parties...."
Plaintiff subsequently agreed to vacate defendant's child support obligations; in January 2008, however, he moved to reinstate them and sought reduction of defendant's parenting time as provided by the 2002 order. He also asked the court to prohibit "any and all discussions with the minor... pertaining to a change in primary residence."
Defendant opposed the motion and cross-moved seeking modification of the 2002 order herself. In general, she alleged that plaintiff had failed to comply with provisions that required counseling sessions for the entire family; that plaintiff was not sharing parenting information with her; and that plaintiff had adopted a "military approach to childrearing," which included corporal punishment. As a result, she claimed Billy had become fearful and anxious. Defendant also claimed that her son's medical needs were neglected. She sought a temporary transfer of custody while further information was gathered through a risk assessment and psychological evaluation of her son.
The motion judge entered an order on February 1, 2008 that thoroughly addressed all the issues presented by both sides. He refused to reduce defendant's parenting time because plaintiff "ha[d] not pointed to any change in circumstances that would warrant a change...." He ordered both parties not to "discuss the litigation with the child."
The judge also denied defendant's motion to be designated PPR "without prejudice." He noted that the issue essentially involved "parenting time," and must be referred, in the first instance, to mediation. See R. 5:8-1. As a result, he ordered both parties to "participate in mediation to attempt to resolve their current dispute over custody and parenting time." Failing resolution, both parties were ordered to participate in a "Custody Neutral Assessment" (CNA), the costs of which were to be shared equally. The judge permitted either side to "file an appropriate motion" if the matter was thereafter still unresolved. Significantly, the judge determined that "[d]efendant ha[d] not established a sufficient reason to transfer custody on a motion." Lastly, the judge granted defendant's request "to arrange for counseling sessions for the child...."
The CNA was completed on August 28, 2008 by Robert B. Haynes, Ph.D. Haynes interviewed plaintiff, who was employed by the Army, had now re-married for a third time, and lived in Burlington County with his new wife, Billy, and two stepsons. Plaintiff reported no major problems with Billy's health, no behavioral problems, and no educational problems, with the exception of Billy's poor grades in mathematics, his son's "most troubling subject." Billy had been in the same school system since kindergarten, and plaintiff arranged for tutoring and enrollment in "an early intervention program...." Plaintiff denied any excessive discipline or corporal punishment directed toward his son.
Haynes noted that routinely Billy would be alone when he returned home from school, but plaintiff reported that someone would arrive shortly thereafter. On one occasion, plaintiff recounted that the Division of Youth and Family Services "was contacted regarding [Billy] being left alone after school." The matter was investigated, and "dropped without incident."
Haynes interviewed defendant. At that time, she resided in a two-family home in Bergen County, approximately two hours from plaintiff, with her mother, brother and six-year old son from another relationship. She too reported that Billy suffered from no significant behavioral or health problems, but claimed he was a "'horrible student.'" Defendant felt it was inappropriate for Billy "to be home by himself after school for any length of time." She wanted the judge to decide "whether [Billy's] being home alone [wa]s permissible."
Lastly, Haynes interviewed Billy, who told him that his parents' divorce "ha[d] been tough on him." He liked his father's new wife who "encourage[d]" him to be artistically creative, and "stated that both parents ha[d] qualities that he like[d]." The child genuinely appreciated both of his parents. Nonetheless, Haynes opined that Billy "seemed sad," and expressed a desire to "'be more popular'" during the upcoming school year.
Haynes recommended that Billy receive counseling, and he urged the parties to "open up... for appropriate, child-focused communication... for [Billy's] sake." Expressing concern for Billy's "grades in school[,]" Haynes believed the early intervention program and private tutoring were "crucial for [Billy's] success." He noted that it was "more difficult to change school systems after the school year" began. Haynes made no other specific recommendations, finding that "both parents love their son and desire[d] to have him reside with them...." He believed that "neither parent [wa]s trying to alienate their son from the other."
In January 2009, defendant sought, by order to show cause, the immediate transfer of custody because of plaintiff's impending deployment as a military reservist, initially out of state, but thereafter, overseas.*fn2 The same judge that had considered the prior motion and cross-motion denied the application, finding no "probability of immediate and irreparable harm...." In a short written statement of his reasons, the judge noted that "plaintiff's upcoming deployment... [wa]s not a sudden development" and "was known to the parties well in advance." He further noted that Billy was "currently enrolled in school," and that defendant had made "no showing that the child w[ould] be harmed in any way if, pending the filing of a motion, the child continue[d] to live with plaintiff's spouse in the same house he ha[d] been living in."
The judge also noted that "defendant's contention that this deployment will immediately and adversely affect [Billy] w[ould] need further development, most likely with the benefit of a custody expert analysis."*fn3
Defendant immediately moved to modify custody and parenting time, and also sought child support if she was awarded custody of Billy. Noting that "[t]here [wa]s not much more to say... since last February," i.e., the denial of her prior cross-motion, defendant characterized the reason for her current application as "simple." She certified that plaintiff had recently informed her that he was about to be "deployed in Iraq for a year[,]" that he was leaving at the end of January, and that "he expected his wife to care for [Billy] and... have primary residential custody." Defendant claimed Billy "should... live with [her] in the absence of his father."
Defendant reiterated her ability to care for Billy. She noted that plaintiff's wife, who was also in the military, sometimes had to leave home during the work week, resulting in all three children being left in the care of plaintiff's parents. Defendant argued that she provided "the preferred living arrangement for [Billy] in his father's absence[,]" and suggested that upon plaintiff's return from service, the parties "c[ould] re-evaluate the child's needs...."
Defendant further claimed that if Billy did not live with her during plaintiff's absence, "it would negatively impact him emotionally," though she provided no details or support for that conclusion. She stated that she was "open to reasonable visitation arrangements" so her son could "continue to see his step-family and his paternal family." In sum, defendant sought "full residential custody of [Billy]" while plaintiff was deployed overseas, along with reasonable child support.
Plaintiff opposed the motion. He noted that he would be deployed in February 2009 "for one year or less." He claimed that Billy was "extremely close" to his step-siblings, and all three children "live[d] and play[ed] together well." Before being deployed to Iraq, plaintiff was to spend the first three months of his active duty in the United States. He noted that he would be accorded one extended leave which would permit him to return home and see his son. He also explained that while stationed in Iraq, it would be difficult to contact home, and it would be even more difficult if he had to contact defendant to speak to his son. Plaintiff took the opportunity to add that defendant's house was a "mess," that several people lived with her, and that Billy "often... d[id] not have a place to sleep" when he stayed with her. Plaintiff agreed to "allow extra [parenting] time for... defendant" while he was deployed.
In a reply certification, defendant alleged that plaintiff's wife "strongly believe[d] that [Billy] should move in" with defendant while plaintiff was deployed. Defendant also alleged that plaintiff's wife told her that the couple was experiencing "severe marital problems," and that plaintiff's parents were behind the opposition to any change in custody. She denied the allegations plaintiff made about the condition of her home and her care of Billy.
The same judge considered oral argument on the motion on February 13, 2009, and entered his order, along with a comprehensive written opinion, the same day. After reviewing the parties' contentions, he first noted that plaintiff was on active military duty, and thus was entitled to the protections afforded by N.J.S.A. 38:23C-4. The judge noted, however, that while that statute provided that "no judgment or final order" shall be entered against a litigant while on active military duty, he did not intend to enter a final order in the matter.*fn4
The judge concluded that "there [wa]s no need [for] a change of custody [to] immediately occur." He noted that Billy was in the "same school... he ha[d] always attended[,]" was near his friends, and was having his medical needs met. The child "did not ...