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Coombs v. Coombs

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 13, 2010

RUSSELL D. COOMBS, JR., PLAINTIFF-APPELLANT,
v.
MICHELLE M. COOMBS, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-23-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 16, 2010

Before Judges Wefing, Messano and LeWinn.

Plaintiff Russell D. Coombs, Jr., appeals from an order of the Family Part that "modif[ied] the existing parenting configurations" between him and his former wife, defendant Michelle M. Coombs. The order of September 8, 2009 maintained the status quo regarding the joint legal custody of the parties' two sons, ages 12 and 10 at the time, but named defendant "the primary residential parent," instead of plaintiff, who had served in that capacity for several years pursuant to a prior court order.

Before us, plaintiff contends that the judge "failed to consider all of the relevant statutory criteria in determining the best interests of the children . . . ." We have considered this argument in light of the record and applicable legal standards. We reverse.

I.

The parties were married in July 1996, and relocated to South Carolina shortly before the birth of their first son in November of that year; their second son was born in June 1999. They remained in South Carolina until January 2001, when, with the exception of a few months, they returned to and resided in New Jersey. By the summer of 2002, the parties separated, and the children resided with plaintiff.

Although the exact circumstances that prompted it are undisclosed by the record, in December 2002, the court ordered a comprehensive custody and visitation evaluation that resulted in the October 20, 2003 report of Dr. John F. McInerney.*fn1 At the time of the evaluation, which occurred months earlier, the parties were still separated; plaintiff was living with his parents and maintained primary residential custody of his two sons. Defendant was exercising supervised, weekly parenting time, pending a final determination by the Family Part judge.

McInerney detailed some of the events that led to the then-current custody and parenting time arrangement. In November 2000, defendant developed an "excessive concern with exercise and weight loss[,]" ultimately affecting her mental and emotional disposition. She became "somewhat erratic and irrational in her thoughts and behaviors." In February 2001, defendant continued to decompensate, and plaintiff and defendant's sister "[e]ffect[ed] an involuntary hospitalization of defendant at [a psychiatric hospital] in Columbia," South Carolina. While there, defendant was diagnosed with bipolar disorder.

In June 2002, defendant had a manic episode marked by "disordered thinking, irresponsible behavior and a refusal to comply with treatment." Defendant was subsequently admitted to the Atlantic City Medical Center for psychiatric treatment on an in-patient basis in July, and again in August. The latter admission resulted in a transfer to Ancora State Pychiatric Hospital, where defendant remained until October 2002. She commenced out-patient treatment thereafter.

In his report, McInerney noted defendant's concern regarding plaintiff's alleged excessive use of alcohol, something plaintiff "acknowledged . . . and felt the need to reduce . . . ." Nevertheless, he concluded that plaintiff was "a well-oriented, cooperative and forthcoming individual" without any evidence of "thought disorder . . . ." On the other hand, McInerney opined that defendant had a "severe" disorder that would likely "be persistent given the occurrence of at least three separate[,] very severe episodes occurring since February." In his opinion, however, defendant was in remission, and showed "no symptoms of major depression . . . ."

McInerney also performed a bonding evaluation. He opined that plaintiff was the "primary source of security and permanence" for the children. The children's relationship with defendant was "more problematic," and marked by "a degree of anxiety and uncertainty." McInerney recommended that the children remain in the care and custody of plaintiff, and that defendant exercise supervised parenting time.

In 2006, the parties entered into a consent order agreeing that defendant would undergo another psychological evaluation by McInerney to assess the continued need for supervision of her parenting time. In a report dated February 9, 2006, McInerney opined that defendant evidenced marked improvement in coping with her disorder, made "very significant progress[,]" was compliant with treatment, and had gainful employment. He recommended that defendant be granted joint legal custody and unsupervised parenting time.*fn2

In August 2007, plaintiff was arrested and subsequently indicted for conspiracy to possess cocaine. This prompted yet another evaluation by McInerney that resulted in his report of May 28, 2008. He noted initially that the parties continued to experience difficulties in co-parenting. Plaintiff believed defendant interfered with the children's school activities by complaining that their athletic events interfered with her parenting time. Plaintiff expressed concern about defendant's complaints to the children regarding his use of alcohol. McInerney referenced a recent drug and alcohol evaluation of plaintiff that noted positive findings regarding cocaine and alcohol use, but also concluded that plaintiff did not evidence "psychoactive substance abuse disorder."

Defendant expressed concern that plaintiff used the children "as 'messengers'" to communicate with her, and left "angry phone calls and messages" on her phone, to which the children were privy; she again expressed concern over plaintiff's use of alcohol. McInerney took note of the report from defendant's treating physician who opined that her manic disorder was likely due to a psychotic reaction to over-the-counter diet supplements that contained an amphetamine-like substance and were no longer sold commercially. McInerney believed that defendant's relationship with her children was "appropriate, reciprocal, concerned, and thoughtful."

McInerney also interviewed both boys. Each one felt anxiety by being "in the middle" of their parents' disputes. The younger boy reported that he was concerned about driving with his father "'after [his father] and a friend have had a few beers.'"

McInerney recommended that the children remain in plaintiff's custody; he reasoned, however, that if plaintiff was incarcerated on his criminal charge, defendant should be granted custody "since she [wa]s fully capable of appropriate parenting . . . ." McInerney also recommended expanded parenting time for defendant, counseling for both parents, continued counseling for the children, and that plaintiff refrain from alcohol use in the children's presence. He also recommended reconsideration if plaintiff and defendant failed to co-parent effectively.

On October 21, 2008, the judge entered an order (the October order) granting defendant expanded parenting time. In his brief letter opinion, the judge noted there was no evidence that defendant would exhibit another manic episode "or that the children were ever put in danger for any reason related to . . . defendant's mental health." The judge implored plaintiff, [P]lease hear your son . . . when he tells Dr. McInerney: "My dad just won't talk to my mom about plans." Please try as hard as you can to understand his pain when he reports that he generally finds himself in the position of being the "messenger" between you and his mother. It really ought not to be so hard for an 11-year-old boy.

Citing McInerney's report, the judge determined that there were two "eventualities" that would "trigger a serious review of the plaintiff's primary custodial designation": (1) "colorable evidence that . . . plaintiff ha[d] driven the boys . . . while impaired . . ."; and (2) the parties' failure to lessen "the intensity of conflict . . . ."

However, the tension between plaintiff and defendant did not abate. In November 2008, they had a disagreement regarding Thanksgiving Day plans. Under the existing parenting time schedule, the children were supposed to spend Thanksgiving with defendant, but plaintiff wanted to take the children to a Philadelphia Eagles football game as a birthday present for his older son. The conflict resulted in defendant and the boys exchanging text messages in which they pleaded with their mother to let them attend the football game. In March 2009, the parties had another disagreement when plaintiff scheduled a vacation that interfered with defendant's parenting time, providing her, she claimed, with virtually no notice.

On January 22, 2009, the parties' older son reported to his guidance counselor that he was "afraid for his father . . . because he ha[d] a drinking problem." The guidance counselor reported this to the Division of Youth and Family Services (D.Y.F.S.) which interviewed both boys. The older son reported that plaintiff would consume alcohol in front of him and his brother, and "drive[] [them] around while under the influence." D.Y.F.S. determined that any allegation of neglect was unfounded, but nevertheless implemented a "safety protection plan" under which plaintiff and his parents, with whom he and his sons still resided, agreed that he would not drive while intoxicated. D.Y.F.S. also recommended that plaintiff attend outpatient alcohol abuse counseling.

These incidents were set forth in defendant's certification that accompanied her pro se motion filed in March 2009 seeking modification of the October order and designation as the parent of primary residence for her two sons. In addition, she claimed that eight days after the October order was entered, she received a phone call from her oldest son that plaintiff had taken the children to a World Series game in Philadelphia, then to a bar, where he became intoxicated. Defendant's motion went unopposed, and the court entered an order on April 24, 2009, designating her as the parent of primary residence beginning "on or about June 12, 2009[,]" after completion of the school year.

On May 9, plaintiff filed a notice of motion to vacate the April order. He had appeared in court on the return date --ostensibly to oppose the motion orally -- and was unaware that he could only respond through written submissions. In his certification, plaintiff contended that the children were well-adjusted at his residence, had many friends in the neighborhood, and were involved in extra-curricular activities at school. He denied taking the children to a bar in Philadelphia, instead characterizing it as a family-style restaurant, and noted that his fiancée had driven him and the children to and from the game. Plaintiff also rebutted defendant's claims regarding the Thanksgiving incident and the March vacation, claiming that in both instances defendant was aware of the plans and had agreed to them.

On June 5, the judge entered an order vacating the April 2009 order, reinstating the October order, and scheduling the matter for further argument. On August 12, 2009, the judge entered an order finding there were "genuine and substantial factual disputes regarding the welfare of [the children]"; he scheduled a plenary hearing for August 24, 2009. We have not been provided with the transcript of the August 12 proceedings. Defendant appeared pro se, but plaintiff had retained counsel. Apparently, no testimony was taken since, in his written statement of reasons that accompanied the August 12 order, the judge indicated that the plenary hearing was necessary based upon "the written submissions as supplemented by oral argument and by the records of [D.Y.F.S.] . . . ."

Starting with what he "consider[ed] to be the blockbuster" issue, plaintiff's use of alcohol, the judge detailed the reports both children gave to D.Y.F.S. He then noted that although D.Y.F.S. referred plaintiff for substance abuse assessment and recommended that he attend "Intensive Outpatient Treatment," plaintiff "outright refus[ed] to accept th[at] without a court order." The judge was critical of D.Y.F.S.'s failure to seek the court's intervention at that time, noting D.Y.F.S. "'blinked' in this standoff" with plaintiff, and "folded its tents in the face of [his] obstinacy."

The judge then addressed the "[c]o-parenting [c]onflict" that continued to exist between the parties. Reciting the conflicting versions plaintiff and defendant gave in their certifications regarding the Thanksgiving incident and the March vacation, the judge essentially concluded defendant's versions were more credible. For example, noting the boys' text messages with their mother regarding the Thanksgiving football game, the judge concluded defendant had been "set up."

There is little question but that these boys were drawn into this vortex by their father's (probably artful) lack of precision about his plans for Thanksgiving and his anger when defendant offered resistance -- once it finally became clear what he truly wanted. His anger became theirs -- and [defendant] was painted into a corner where the boys could only see her as the spoiler. Addressing the March vacation, the judge discounted plaintiff's version -- that the vacation had been agreed to by defendant -- and concluded "the balance of credibility on this point weighs in favor of defendant -- who says there was no agreement." The judge suspected plaintiff's plans had been made for some time -- but that the announcement of the plans was delayed until shortly before the event -- so that defendant would have to choose between capitulation or resistance. If she chose the later, she could be portrayed (again) as the spoiler. And the angry e-mails from the children could begin anew.

As noted, the judge reached these detailed factual findings based upon the conflicting certification of the parties and his review of the D.Y.F.S. file, but apparently without any testimony.

The plenary hearing was held on August 24 and 31. Plaintiff's friends, James Brown and Andrew Mallon, testified that they had never witnessed plaintiff drive while intoxicated. Plaintiff's boss, Daniel Powell, testified that plaintiff had been employed as the manager of his restaurant in Wildwood since 2007. Powell had never seen plaintiff intoxicated, and had never seen him have "any drinks at work at all."

Plaintiff's two brothers, both of whom lived in close proximity to plaintiff and the children, testified that he only drank "occasionally," and that his drinking was much less frequent than in the past. Plaintiff's sister-in-law and father also testified. Both corroborated that plaintiff did not drink and drive with the children, and that his drinking had become less frequent. Both described a close-knit family that actively participated in social gatherings with plaintiff and his two sons.

Plaintiff's fiancée testified. She corroborated that plaintiff did not drink and drive with his children, and that he was a moderate drinker. She was present at the World Series game, having driven plaintiff and his sons to and from Philadelphia. She indicated that plaintiff had little to drink that evening.

Plaintiff lived with his two sons and his parents in their home in North Cape May; his sons shared a bedroom. He testified that since the October order, he had not driven the children while intoxicated. He acknowledged having an alcohol problem prior to his relationship with defendant, and that he sought treatment as a result. He further testified that he did not follow D.Y.F.S.'s recommendation to attend outpatient counseling because he had recently completed Pre-Trial Intervention on the drug charge, was subjected to random urine monitoring for six months, and produced no positive samples. Plaintiff acknowledged his 2007 arrest was a "wake up call."

Plaintiff then testified regarding the "co-parenting issues" that had arisen between him and his ex-wife. He basically reiterated the contents of his earlier certification.

Defendant testified that she lived in Egg Harbor Township in a rented, two-bedroom apartment. She worked as a bartender at Bally's casino in Atlantic City, and during that summer had worked the 6:00 p.m. to 1:00 a.m. shift with Monday and Tuesday off, but was hopeful she could change her hours if awarded residential custody of her sons. She acknowledged that plaintiff had told her about his plan to take the boys to the Eagles football game as early as August, and that she "said okay." She expressed a deep concern for plaintiff's continued use of alcohol in the presence of his children.

The judge interviewed both children in camera. The younger boy did not "want to live at [defendant's] house" because he and his brother had lived with plaintiff "all [their] li[ves]," "like[d] [their] school district and love[d] [their] dad." While he loved his mother, he did not want to live with her. He told the judge, "We need our dad when we're boys." Noting the fact that he "got straight A's last year" in school, he told the judge that his father helped him with his homework, whereas when his mother helped him, his grades were not as good.

The older son told the judge, "I want to live with my dad . . . ." Having been in the same school system "all his life," he was about to enter a new middle school and was excited about the prospects. He told the judge that he "had twelve and a half years to . . . get up [his] reputation in school and with the whole community," and he did not want to "have to start all over again" by moving in with his mother and going to a new school system. He acknowledged loving his parents "equally[,]" but told the judge that as "a young man and at this point in time [he] . . . need[ed] [his] father."

He further told the judge that "some of the stuff [his] mom said were lies," noting that he had never told defendant that he was in a bar with his father at the World Series game, or that he and his brother "were scared to death because our father was drinking." He told the judge that plaintiff no longer drove after drinking, and that he had not drunk around him in almost one year.

Notably, the judge asked virtually no questions of either boy regarding their father's use of alcohol. When the older boy told the judge that his father had never drunk "ten beers around us," the judge asked him "[h]ow do you know about ten beers?" The child answered Because my mom was telling me about it, how . . . irresponsible [plaintiff] was to drink ten beers around us. And I said that he didn't never [sic] drink ten beers.

On September 3, 2009, the judge rendered his decision orally on the record. It suffices to say that the first eleven pages of the twenty-one page transcript are a recitation of the events and reports related to plaintiff's use of alcohol and cocaine. The judge then explained how he considered this information, noting he approached "the custody question . . . through the prism of a continuum." On "one side of the continuum [wa]s defendant's significant psychiatric illness. On the other side, the plaintiff's substance use problems." Early on, because of defendant's mental health, the judge believed the children rightfully belonged with plaintiff, "[e]ven though indications were that [plaintiff's] lack of insight regarding alcohol use were . . . rather serious insight deficits." The judge noted, "[W]e could afford to leave things alone in light of a number of things, including the residence of the boys within the home with the grandparents and the involvement of siblings and in-laws in the neighborhood."

However, by 2007, "the balance . . . beg[an] to tip . . . ." The judge found that defendant "demonstrated the resiliency of her remission and recovery of stability," but plaintiff "demonstrated by his cocaine arrest even less insight about the problems . . . caused . . . by [his] use of psychoactive substances." The judge found that plaintiff was "a problem user of substances and . . . [had] been so for many, many years."

He referenced the children's accounts of their father's drinking made to their guidance counselor in January, finding those accounts to be credible, despite plaintiff's "effort[s] to essentially discredit the boys . . . ." Noting that he "resisted" any in camera interview with the boys, the judge "relented" and found both children to be "wonderful, bright, engaging, beautiful boys."

Regarding the "issues [of] communication" between the parties, the judge found defendant's accounts more credible. He found that plaintiff "minimize[d] the importance of [defendant] in the children's lives," and blamed his ex-wife for his problems, refusing to recognize the improvement in her condition. The judge found that plaintiff "need[ed] to get on with it and stop blaming and stop discounting and stop rationalizing."

The judge concluded:

[T]he evidence . . . is sufficient to establish that the circumstances, in an odd sort of twist, have not changed sufficiently since the October . . . order and that the absence of those required or expected changes does . . . support a change in the primary custodial designation.

Referencing the statutory factors, N.J.S.A. 9:2-4(c), the judge thought two "in particular [we]re very apt." He found plaintiff "consistently demonstrated an unwillingness to agree, communicate and cooperate in matters relating to the . . . children," and that "his untreated persistent psychoactive substance use issues negatively affect[ed] the safety of the boys and put them at a risk of harm." The judge gave the boys' preferences "minimum weight" because "they would [not] be able to offer a genuine and true statement . . . in the context of th[e] superheated period" since the plenary hearing was ordered.

The judge entered an interim order designating defendant as "the primary custodial parent," and ordered D.Y.F.S. to "reopen its file on [plaintiff] and schedule him for an updated substance abuse evaluation." Pending receipt of that report, and plaintiff's "compliance and successful completion of" any treatment recommendations, the judge ordered plaintiff "not to drive a car in which either one (or both) of his sons is a passenger." In addition to these provisions, a subsequently-entered final order included a parenting time schedule. This appeal followed.

II.

Plaintiff contends that the judge failed to properly consider all the statutory factors that govern resolution of any custody dispute and that guide the court's determination of what is in the children's best interests. See Kinsella v. Kinsella, 150 N.J. 276, 317 (1997) ("[T]he primary and overarching consideration is the best interest of the child."). In considering this argument, we recognize some basic principles that guide our review.

(a).

We accord great deference to the fact findings made by the trial judge, recognizing his ability to access the credibility of the witnesses actually testifying before him, as well as the special expertise he brings to matters in the Family Part. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). Thus, a "trial court's factual findings 'should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (in turn quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974))).

However, no such deference is extended to the trial court's interpretation of issues of law. "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." N.J. Div. of Youth and Family Servs. v. R.L., 388 N.J. Super. 81, 88 (2006) (quoting Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, (1995)).

"Custody issues are resolved using a best interests analysis that gives weight to the factors set forth in N.J.S.A. 9:2-4(c)." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (citing V.C. v. M.J.B., 163 N.J. 200, 227-28, cert. denied, 531 U.S. 926, 121 S.Ct. 302, 148 L.Ed. 2d 243 (2000)). That statute requires a judge to consider a myriad of factors before making any custodial determination:

In making an award of custody, the court shall consider but not be limited to the following factors: the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child's education; the fitness of the parents; the geographical proximity of the parents' homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents' employment responsibilities; and the age and number of the children. [N.J.S.A. 9:2-4(c)]

A prior custody order "whether reached by consent or adjudication, embodies a best interests determination." Todd v. Sheridan, 268 N.J. Super. 387, 398 (App. Div. 1993). "A party seeking to modify custody must demonstrate changed circumstances that affect the welfare of the children." Hand, supra, 391 N.J. Super. at 105 (citations omitted); Todd, supra, 268 N.J. Super. at 398. The "party seeking such modification bears the burden of proof . . . ." Innes v. Carrascosa, 391 N.J. Super. 453, 500 (App. Div. 2007) (citing Sheehan v. Sheehan, 51 N.J. Super. 276, 287-88 (App. Div.), certif. denied, 28 N.J. 147 (1958)).

The welfare of a child has been construed to mean "the safety, happiness, physical, mental and moral welfare of the child." Fantony v. Fantony, 21 N.J. 525, 536 (1956). The concept "includes many elements and concerns more than the physical well-being resulting from the furnishing of adequate food, clothing and shelter. It concerns, inter alia, the spiritual and social welfare of the child." Sheehan, supra, 51 N.J. Super. at 292.

In child custody matters, we accord "great weight" to the trial judge's opinion. Terry v. Terry, 270 N.J. Super. 105, 118 (App. Div. 1994) (citing Palermo v. Palermo, 164 N.J. Super. 492, 498 (App. Div. 1978)); Sheehan, supra, 51 N.J. Super. at 295; Scanlon v. Scanlon, 29 N.J. Super. 317, 324 (App. Div. 1954)). "Yet we must evaluate that opinion by considering the statutory declared public policy and criteria which a trial court must consider . . . ." Terry, supra, 270 N.J. Super. at 118.

Our obligation in reviewing a custody determination, no less a modification of previously-ordered custodial arrangements, is to assure that the trial court has considered the statutory factors and thoroughly explained its reasons in light of those factors. "[T]he articulation of reasons by the trial court in a child custody proceeding must reference the pertinent statutory criteria with some specificity and should reference the remaining statutory scheme at least generally, to warrant affirmance." Id. at 119. Moreover, "[s]uperimposed upon an analysis of the statutory scheme is the additional requirement that the court consider and articulate why its custody decision is deemed to be in the child's best interest." Ibid.

Applying these general principles to the facts of this case, we are convinced that reversal is warranted.

(b).

Defendant sought modification of the October order. Therefore, when she filed her March 2009 motion, she was required to demonstrate a change of circumstances that affected the welfare of her children. As we see it, the alleged changed circumstances were two-fold: plaintiff's unwillingness to cooperate in co-parenting his sons had exacerbated the conflict between the parties; and, his use of alcohol around his children had been reported to their guidance counselor causing D.Y.F.S. to investigate the allegation.

We are somewhat puzzled by the judge's finding that the evidence at the plenary hearing was "sufficient to establish that the circumstances, in an odd sort of twist, have not changed sufficiently since the October . . . order." There is nothing contained in that order requiring plaintiff to do anything, although it did mandate that both parties were to cooperate in their co-parenting plan. The judge's written memorandum of reasons that accompanied the October order specifically concluded that the substance abuse evaluation plaintiff had undergone in 2007 "did not recommend treatment," and the judge eschewed ordering any "without more concrete or conclusive evidence that there [wa]s a current manifestation of a problem . . . ." Despite this curious choice of words by the judge, we accept that he essentially determined that defendant had met her initial burden, and that a plenary hearing was required. We have no quarrel with that conclusion whatsoever, because the events set forth in defendant's certification, combined with the intervening D.Y.F.S. investigation, were causes for substantial concern.

Additionally, the judge's August 2009 order that set the date for the plenary hearing was supported by an extensive written memorandum of reasons. We believe such a hearing was appropriate "to resolve the factual dispute[s]." Hand, supra, 391 N.J. Super. at 105; see also Mackowski v. Mackowski, 317 N.J. Super. 8, 10 (App. Div. 1998) (plenary hearing warranted based upon conflicting certifications); Dorfman v. Dorfman, 315 N.J. Super. 511, 518 (App. Div. 1998) (holding that a plenary hearing was necessary based upon mother's certification and school social worker's report of child's behavioral problems).

As we noted above, however, it is quite clear to us, and plaintiff has so argued, that the judge assessed the credibility of the parties regarding both issues, i.e., co-parenting problems and plaintiff's use of alcohol around his children, before hearing any testimony, and had already concluded that defendant's version of the events was more credible.

In deciding to modify the existing custodial order that had been in place for several years and that recognized what had been the de facto custodial arrangement virtually since the birth of both boys, the judge focused on two of the statutory factors. He noted that plaintiff failed "to agree, communicate and cooperate in matters relating to the child[ren]," and that plaintiff's refusal to address his alcohol use posed a risk to "the safety of the child[ren]." See N.J.S.A. 9:2-4(c). The only other statutory factor specifically referenced, "the preference of the child[ren]," was accorded "minimal weight" by the judge.

In this regard, we recognize that the preference of the children is only one factor to be taken into account in determining the best interests of the children, and those expressions are not controlling. See Chen v. Heller, 334 N.J. Super. 361, 381 (App. Div. 2000) (citing Palermo, supra, 164 N.J. Super. at 499). However, as the judge noted, both boys in this case were "wonderful, bright, [and] engaging," with a clear understanding of their parents' relationship and its problems. The older boy expressed a very logical reason for wishing to remain in his father's custody, noting that although he loved his mother very much, he had spent his entire life in his current school system, and did not wish to move and start anew. The younger boy expressed similar wishes.

Although the judge was entitled to exercise his wide discretion in considering the interviews of the boys, it is clear that both children, who were excellent students, had provided strong evidence that supported a finding that "the quality and continuity of the[ir] . . . education," one of the statutory factors, weighed heavily against any modification of custody. The judge, however, did not even mention this factor in his opinion.

We note several other factors, all of which the judge did not discuss at all. The judge was obligated to consider "the interaction and relationship of the child[ren] with [their] parents," and "the extent and quality of the time spent with the child[ren] . . . ." N.J.S.A. 9:2-4(c). It is clear that both parties have done an admirable job in raising their sons, and that both love their children and are active participants in their lives. Nevertheless, plaintiff has been the parent of primary residential custody for both boys essentially since their birth. Defendant, on the other hand, had been absent from their lives during the early years, and had been exercising unsupervised parenting time only since 2006.

The statute also requires the judge to consider "the needs of the child[ren]," and "the stability of the home environment offered," neither of which the judge addressed. Ibid. These two boys participated in a variety of extra-curricular activities, including sports, that centered on their respective schools. They had lived with their father and grandparents for several years, with plaintiff's extended family being intimately involved in their lives. By modifying residential custody, the judge was ordering them to relocate to their mother's home, forty minutes away, enter a new school system, and start their lives, as the older boy stated, "all over again." Beyond consideration of the statutory factors, the judge failed to articulate "why [his] custody decision [wa]s deemed to be in the child[ren]'s best interest." Terry, supra, 270 N.J. Super. at 119.

We appreciate the judge's concern regarding plaintiff's use of alcohol and the potential harm this posed for his sons. It is not our intention to minimize the risks of such behavior. However, the judge had the power to specifically address that concern by ordering another evaluation and by further ordering plaintiff to comply with any recommendations and treatment. In the judge's final order, he did just that, but at the same time granted defendant's request to modify the custody arrangements. In attempting to address the issues regarding plaintiff's use of alcohol through modification of the existing custodial arrangement, we are convinced that the judge "was mistaken" because he "undervalue[ed] the best interests of the children." Chen, supra, 334 N.J. Super. at 381.

We therefore are compelled to reverse and remand the matter for further proceedings. Since the determinations made by the judge and his expressed level of frustration toward plaintiff may make it difficult for him to conduct the remand hearing, we direct that a different judge do so. See Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005). In this regard, the judge may consider whether any additional evaluations should be conducted, and may specifically impose any reasonable and necessary conditions upon plaintiff's continued designation as the parent of primary residence.

We also hasten to add that several months have passed since the modification order was entered. We have no way of knowing what, if anything, has transpired in the interim. For example, we anticipate that the two children have enrolled in a school near defendant, and forcing their transfer at this point in the school year would be unwise. Therefore, in implementing our order, we leave any questions regarding the scope of the proceedings on remand to the judge's sound discretion.

Reversed and remanded; we do not retain jurisdiction.


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