May 5, 2010
BERNICE DRAKEFORD, PLAINTIFF-RESPONDENT,
SHARDINA RIVERS, DEFENDANT-APPELLANT, AND CHRISTOPHER WAITERS, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. FD-09-2575-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 21, 2010
Before Judges Graves and Newman.
Defendant Shardina Rivers (Rivers) is the mother of two children. The older child is now thirteen years old, and the younger child is ten years old. Defendant Christopher Waiters (Waiters) is the father of the children. Plaintiff Bernice Drakeford (Drakeford) is the children's paternal grandmother.
On January 30, 2009, the trial court denied the motion by Rivers to transfer custody of the children from Drakeford to her. In February 2009, Rivers moved for reconsideration arguing that she was always "the primary caregiver" for the children despite a consent order which, according to Rivers, awarded temporary custody of the children to Drakeford "on paper only." On April 3, 2009, the court granted reconsideration, entertained oral argument on defendant's motion, and again denied the application for a change of custody without a plenary hearing and without interviewing the children.
The primary issue on appeal is whether defendant's motion for a change of custody should have been decided without a plenary hearing. As the motion judge noted, the certifications submitted by the parties were "certainly in dispute. Ms. Rivers claims to be the primary caretaker of the children. Ms. Drakeford claims to be the primary caretaker to the children.
Mr. Waiters['s] position is somewhat unclear but apparently he considers himself a primary co-caretaker with his mother, Ms. Drakeford." Under these circumstances, we conclude that a plenary hearing is necessary to develop the facts and to determine what is in the children's best interests.
We do not find it necessary for purposes of this opinion to recite the parties' conflicting versions of what transpired between them prior to the entry of the consent order on April 25, 2003, and thereafter. The motion judge conscientiously considered the submissions and concluded that the children "have been raised somewhat by all three parties":
This is not your classical case of a custodial parent/non-custodial parent. It's a classical case of three people who were getting along in an extended family setting. . . . [in] a mother-daughter house, upstairs, downstairs, next door.
[I]t's a duplex. It's adjoining houses. . . . two doors that were probably less than five feet apart. So, the children are running in and out of one door, back in the other door. . . .
So, it may be that these children are doing well because of the cooperation of the three parents, which has now deteriorated. And you can't tell me that the children don't know what's going on.
Based on these findings by the motion judge, which are fully supported in the record, we are satisfied there is "a genuine and substantial" custody issue, Rule 5:8-6, and a plenary hearing is necessary to develop the record. See Mackowski v. Mackowski, 317 N.J. Super. 8, 11 (App. Div. 1998) (noting "the failure to conduct a plenary hearing and to interview the child was inconsistent with R. 5:8-6"); Wilke v. Culp, 196 N.J. Super. 487, 501 (App. Div. 1984) (holding that child visitation issues should not be decided on the basis of conflicting affidavits or an inadequate record), certif. denied, 99 N.J. 243 (1985). On remand, the court should also reconsider defendant's request to appoint a guardian ad litem to represent the children's best interests. See R. 5:8B.
The order of April 3, 2009, is reversed and the matter is remanded to the Family Part for a plenary hearing. Jurisdiction is not retained.
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