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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...