May 20, 2010
LORENE HARGROVE, PLAINTIFF-RESPONDENT,
DONNELL L. HASSELL, II, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FD-12-1886-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 3, 2010
Before Judges Lisa and Baxter.
Defendant, Donnell L. Hassell, II, appeals from a June 5, 2009 Family Part order that authorized his nine-year-old son's maternal grandmother to assume physical custody of the child for a period of one year while the child's mother, plaintiff Lorene Hargrove, serves a one-year tour of duty in Kuwait. In light of the temporary nature of the order and the disruption of the child's life were physical custody to be transferred to his father in Georgia for the one year, we reject the father's claim that the judge erred by awarding custody to the grandmother notwithstanding that he, as the father, was a willing, fit and able custodian. We affirm.
Plaintiff and defendant are both service members in the United States Army. After living together for a period of time, they separated shortly before their son was born in August 2000. After a tour of duty in Iraq, defendant was stationed at Fort Gordon, Georgia in 2006. He has lived in Hephzibah, Georgia near the base ever since. Other than for periods of visitation, which we shall describe, the child has never lived with his father. A January 3, 2007 order awarded residential custody to plaintiff, with joint legal custody awarded to both parents. The 2007 order granted defendant visitation for the entire month of July each year and on alternating Thanksgiving and Christmas holidays.
The uncontroverted evidence presented at the May 11, 2009 plenary hearing demonstrates that the child has been living with plaintiff, his mother, ever since his birth. In 2005, plaintiff and the child moved into the home of plaintiff's mother in Perth Amboy, and were still living there at the time of the May 11, 2009 hearing.
Plaintiff testified that she accepted a one-year tour of duty in Kuwait, which would start in June 2009, rather than run the risk of being stationed indefinitely at a post in Texas. Because Army regulations forbid service members from bringing their children to Kuwait, plaintiff filed a motion with the Family Part asking to transfer residential custody of the parties' son to her mother, with her mother and defendant to share joint legal custody.
Plaintiff testified that defendant had exercised parenting time for a total of only seven weeks in the past nine years. In particular, defendant "saw [his son] one time" between 2000 and 2006. In the summers of 2007 and 2008, defendant exercised his parenting time for a total of seven weeks. Plaintiff asserted that the only reason defendant even saw his son for those seven weeks was because plaintiff's ex-husband, who visited his own family in Georgia and Virginia each summer, agreed to transport the parties' son to visit with defendant. Plaintiff maintained that defendant had never "made any adjustments in order to see [their] son." She said, "It is -- to me it seems like an inconvenience."
Plaintiff asserted that the child barely knows his father. She stated, "when my son -- when our son talks about Virginia and Georgia, he talks about a dog and his brother. He doesn't talk about his Dad, he doesn't talk about his Grandmom, he doesn't talk -- cause he doesn't know them."
When asked by the judge whether she had ever done anything to interfere with defendant's exercise of his parenting time, plaintiff answered "no." Defendant disagreed, maintaining that on several occasions he had telephoned his son only to be told by plaintiff that the child was working on his homework or was outside playing. According to defendant, plaintiff refused to call the child inside. Plaintiff responded to that accusation by insisting that on each such occasion she had provided defendant with a time that he should call back, but defendant had never done so.
In addition to claiming that custody should not be temporarily transferred to defendant because he had not availed himself of the opportunity to develop a strong bond with his son, plaintiff also maintained that such a transfer would interfere with the child's educational progress. Plaintiff testified that the parties' son suffers from attention deficit hyperactivity disorder (ADHD) and his school had developed a "504 Plan"*fn1 for him, which would be disrupted were the child to live with his father in Georgia for a year.
According to plaintiff, she had worked hard "to get [the child] where he needs to be. And if we -- he gets moved now, it's not going to happen. I mean, he's -- he's really going to fall apart. Because he is ADHD." She also explained that her son's ADHD was severe, as it had resulted in his having to repeat the second grade; however, with the accommodations afforded by the 504 Plan, the child had made great progress and was doing well in school. Plaintiff maintained that if the child were to live with his father in Georgia while she was in Kuwait, his educational progress might falter.
Defendant testified that the local elementary school in Georgia could easily implement the 504 Plan devised by the school in Perth Amboy and that he was fully capable of providing the same educational support for the child as plaintiff had provided. He also asserted that the child's half-brother, who was living with him, also had ADHD and he intended to put that child in a 504 program. Defendant also explained that his mother and younger sister lived nearby and he has a "good family support base" that would assist him in caring for his son. When the judge asked who would take care of the child during the day while he was at work, defendant responded that he would use an after-school daycare program, but that the half-brother, who was fifteen years old, could baby sit "on occasion." Defendant also testified that plaintiff had overstated the ostensible disruption to the child's life were he to live with his father for a year because, according to defendant, while the child would be "leaving friends and family here, he also ha[s] family and friends in Augusta[, Georgia]."
Plaintiff also presented the testimony of her mother, who testified that once plaintiff and the child moved into her home, she reduced her hours at work to only three hours per day so she could be home when her grandson finished school each day. She explained that she works as a lunch aide at her grandson's school. She also testified that her own sister lived upstairs and was available to help out from time to time should the need arise.
At the conclusion of the May 11, 2009 evidentiary hearing, which covers ninety-one transcript pages, the judge explained that he wanted to interview the parties' son. Plaintiff agreed to bring him to the courthouse for that purpose a few days later. At that point, the hearing concluded. The record on appeal does not include a transcript of the judge's interview of the child, nor does it contain either a written or oral statement of reasons.*fn2 Instead, the judge's June 5, 2009 order merely provides that: physical custody of the child would be "with [the] maternal grandmother until June 30, 2010 or when plaintiff permanently returns from Kuwait, whichever is earlier; defendant would be afforded parenting time with the child for the entire summer of 2009, rather than only the month of July; and legal custody of the child would be shared between the maternal grandmother and defendant until plaintiff's return from Kuwait, at which time plaintiff and defendant would resume sharing joint legal custody.
Although, as far as we can tell, the judge did not provide an oral or written statement of reasons to support his June 5, 2009 order, we discern from his comments during the evidentiary hearing a reluctance to expose the child to the disruption that relocation to Georgia would entail. The judge commented:
And taking him out of the setting that he knows, putting him in another loving setting I'm sure. But taking him out of the setting that he knows, taking him from the friends that he knows and the teachers that he knows for a year. And then he's going to be forming some contacts down in Georgia and then I bring him back again and he starts all over again. I'm just not sure how good that is . . . for him.
On appeal, defendant maintains that because he is the biological father, and he is a willing, fit and able custodian, the award of temporary custody to the maternal grandmother was reversible error.
Plaintiff urges us to affirm the June 5, 2009 order. She argues that removing her son from the home of his maternal grandmother in Perth Amboy -- where he has lived happily ever since 2006 -- to transfer him to Georgia would not be in the child's best interest. She insists that the child has only a superficial relationship with his father and would suffer academically if forced to attend a new school that might ignore the 504 Plan developed in New Jersey.
In a custody dispute between a natural parent and a third party, such as a grandparent, a presumption exists in favor of the biological parent. Watkins v. Nelson, 163 N.J. 235, 237 (2000). "That presumption can be rebutted by proof of gross misconduct, abandonment, unfitness, or the existence of 'exceptional circumstances,' but never by a simple application of the best interests test." Ibid. Only after that presumption has been rebutted, should the court decide whether awarding custody to the third party would promote the best interests of the child. Id. at 254. As the Court observed in Watkins, "the best interest of the child cannot validly ground an award of custody to a third party over the objection of a fit parent without an initial court finding that the standard for termination of the rights of a non-consenting parent or the 'exceptional circumstances' prong has been satisfied." Id. at 255.
In Watkins, the Court was confronted with a custody dispute between the natural father of the child and the maternal grandparents after the natural mother was killed in an automobile accident when the child was only twelve days old. Id. at 238. Although the Court's opinion arose in the context of the death of one of the natural parents, and involved an interpretation of N.J.S.A. 9:2-5, which deals with that subject, we do not construe Watkins as applying only in circumstances where one parent has died. Instead, we view Watkins as controlling authority in any circumstances where a natural parent and a grandparent are engaged in a struggle for custody of a child.
That being said, we nonetheless do not view Watkins as determinative of the outcome here. Unlike Watkins, which involved a determination of where the child would live until she reached the age of majority, here we are dealing only with a one-year grant of temporary custody until this child's mother returns from Kuwait. We do not interpret Watkins as applying to a temporary change of custody.
As we have noted, we do not have the benefit of a statement of reasons from the judge. For that reason, we do not know if he based his June 5, 2009 order on a straightforward best interests of the child determination or whether, instead, he concluded that "exceptional circumstances" were presented because the child would suffer actual harm if transferred to Georgia to live with a father he barely knew and to a school where his educational needs might not be met.
In the absence of a statement of reasons, one option would be a remand to the trial court for the preparation of the statement of reasons required by Rule 1:7-4. We recognize, however, that nearly eleven of the twelve months encompassed by the June 5, 2009 order have already passed, and we hesitate to consume more time with a remand and an eventual further review by this court. For that reason, because the facts are essentially uncontroverted, we deem it preferable to decide this appeal based upon the existing record and the judge's June 5, 2009 order without the benefit of a formal statement of reasons.
The scope of our review of child custody orders is limited. In light of the "special expertise in the field of domestic relations" possessed by judges in the Family Part, Cesare v. Cesare, 154 N.J. 394, 412 (1998), we will defer to a judge's decision concerning the type of custody arrangement unless such order represents an abuse of discretion. Nufrio v. Nufrio, 341 N.J. Super. 548, 555 (App. Div. 2001).
We have carefully considered defendant's contentions in light of the record and applicable law. We are satisfied that the order under review should be affirmed for the following reasons: the order in question is not of indefinite duration, but is limited to a period of only one year; transferring custody of this child to his father would entail a massive disruption to the life the child has known because it would take him away from the grandmother with whom he had lived for nearly four years, away from the school he had attended all his life and away from the community he knows; his relationship with his father is tenuous at best as his father saw him only once for the first six years of his life and has spent only seven weeks with him since 2006; and the child's well-implemented 504 Plan might be disrupted, in whole or in part, if the child transfers to a new school in Georgia.
Taking all of these factors into consideration, we cannot conclude that the June 5, 2009 order constitutes an abuse of discretion. In reaching that conclusion, we do not consider ourselves bound by Watkins, as Watkins involved a custody decision of eighteen years' duration, rather than the one-year award of temporary custody involved here.