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O.R. v. H.S.


June 28, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-1778-05.

Per curiam.



Submitted February 9, 2010

Before Judges Grall and LeWinn.

The parties, who have never been married to each other, are the parents of a son born in March 2005. Plaintiff is a citizen of Jamaica; defendant is a United States citizen. While plaintiff was pregnant with their child, she obtained a domestic violence final restraining order (FRO) against defendant; their son was born less than two weeks later.

The parties had no further court proceedings until April 2009, when defendant, mistakenly believing that plaintiff faced imminent deportation, filed a motion seeking legal and residential custody of their son in the event of such deportation; he also requested that plaintiff surrender the child's passport to the court or to him. On April 15, 2009, the court entered an amended FRO denying defendant's request regarding the passport and instructing him to file a motion for custody under the domestic violence (FV) docket.

It appears that on or about June 18, 2009, plaintiff sent the parties' son to live with relatives in Jamaica; this was done without defendant's consent. Defendant filed an order to show cause on or about July 3, 2009, seeking the following relief: (1) forbidding the child to travel outside the United States without the express consent of both parties; (2) "[c]onfirming that the parties shall have joint legal custody of the child[,]" that plaintiff is the residential custodian with defendant having parenting time on alternate weekends from Friday to Sunday, and setting a holiday/summer parenting time schedule; (3) requiring amendment of the FRO to "permit the parties to communicate between themselves only concerning the[ir]... son"; and (4) requiring immediate transfer of residential custody to him in the event of plaintiff's deportation.

The parties appeared in court on July 7, 2009; both were represented by counsel. During colloquy with the court, it was resolved that the child would shortly be returning to the United States and defendant would have parenting time upon the child's return. Defendant's attorney then asked the court to enter an order reflecting those two matters as well as "an order saying there's joint legal custody...." Plaintiff's attorney objected that there was "no basis to issue any type of an order on this bare bones application granting anybody joint custody to a child. That can only be done after a hearing." The court indicated its disagreement with that statement, noting that there had been "no finding... that [plaintiff is] the sole custodian."

Plaintiff's attorney contended that defendant had submitted no proof of his relationship with the child; there was a restraining order in place between the parties for the past four years, based upon evidence that plaintiff was afraid of defendant; and there was "no reason why he should have joint custody at this juncture. If the [c]court wants to... say we should keep him informed. No problem." Counsel further asserted that defendant had paid no child support, despite defendant's representations to the contrary in his certification, wherein he had stated that he "provided financial support to... [p]laintiff for [their] son[,]... [and] also paid for his clothes, his preschool, and... [p]laintiff's cell phone bill so that [he] could communicate with [his] son." Defendant had also claimed that since the child was born, he has had parenting time "every weekend from Friday night... until Sunday afternoon[,]" and that he "arranged for pick up and delivery." However, he appended no documentation to support these claims.

The court heard brief testimony from plaintiff in which she asserted that, other than buying clothes for their son which defendant kept at his residence, he had paid no support for the child. Plaintiff also testified that defendant had a history of drug use and that she "was the one running up and down with [sic] rehab with him trying to get him clean so he could be a part of his son's... life."

The judge stated that she would have defendant submit to a random drug screen that day, but the record does not reflect that such a test in fact took place. Plaintiff's attorney reiterated that "there's no basis why [defendant] should have any control over this child at this point in time[,]" and requested a "hearing to find out."

Following this exchange, the court and counsel engaged in colloquy about defendant's parenting time upon the child's return from Jamaica. The court then adjourned to calculate defendant's child support obligation. Sometime later that day, an order prepared by the court was delivered to the parties and their attorneys. The order stated that the parties' child would return from Jamaica on August 31, 2009; the parties would share joint legal custody with plaintiff as the primary residential custodian; defendant would have parenting time in September upon the child's return, and thereafter every other weekend from Saturday to Sunday; defendant's child support obligation was set at $148 per week; and neither party would remove the child from the country without the other party's written consent.

The order is signed by both parties. Plaintiff wrote next to her signature "except as to ¶2[,]" which states, in pertinent part: "The parties shall have joint legal custody of the parties' child,... with the [p]laintiff as the child's primary residential custodian."

On appeal, plaintiff challenges only paragraph 2 of that order requiring the parties to share joint legal custody of the child. She contends that the court erred in entering such an order without holding a hearing. We concur and, therefore, reverse that provision and remand for further proceedings on this issue. We are aware that plaintiff is not appealing the provisions of the order affording defendant overnight parenting time with the child, notwithstanding the FRO and her testimony regarding his history of drug use. Nonetheless, she clearly opposes joint legal custody and is entitled to a further hearing on that issue.

Legal custody of a child, as opposed to physical custody, has been defined as "the legal authority and responsibility for making 'major' decisions regarding the child's welfare...." Beck v. Beck, 86 N.J. 480, 486-87 (1981). Here, the record is devoid of any evidence of the quality of defendant's relationship with his son; in fact, the record demonstrates the strain in the parents' relationship as evidenced by the FRO in place since 2005. The court was faced with a situation in which the parties did not agree on this issue. Under these circumstances, the court was remiss in ordering joint legal custody without holding a hearing to determine what is in the child's best interest.

In custody determinations, "the best interests of the child is [the] polestar" by which the court should be guided. Id. at 499. In making an award of custody, whether physical or legal, 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 interaction and relationship of the child with its parents...; 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;... [and] the fitness of the parents.... [N.J.S.A. 9:2-4 (emphasis added).]

We affirmed an order denying a non-custodial parent's request for joint legal custody in a case factually similar to this, in which the mother had a domestic violence FRO in place against the father who did not seek to have the FRO vacated. In Grover v. Terlaje, 379 N.J. Super. 400, 407 (App. Div. 2005), we noted that "the presumption in favor of awarding custody to 'the non-abusive spouse' embodied in N.J.S.A. 2C:25-29b(11)*fn1 relates to legal as well as physical custody, although the presumption weakens as time passes without any conduct which can be said to jeopardize the 'non-abusive spouse' or the child." Clearly, a hearing is necessary to make this determination.

In Grover, as here, the defendant did "not claim the FRO should be vacated.... He s[ought] only joint legal custody and the related ability to participate in decision making relating to his son." Id. at 408. Nonetheless, we held that "the same principles" governing an application to dissolve an FRO apply because "[t]he joint legal custodians must be able communicate about the child...." Id. at 409.

Those "principles," as set forth in Carfagno v. Carfagno, 288 N.J. Super. 424, 434-35 (Ch. Div. 1995), include the following which are pertinent here: "whether the victim fears the defendant"; "the nature of the relationship between the parties today"; "whether the defendant has a continuing involvement with drug or alcohol abuse"; "whether the defendant has engaged in counseling"; "the age and health of the defendant"; and any "other factors deemed relevant by the court."

Accordingly, we are constrained to reverse paragraph 2 of the July 7, 2009 order providing that the parties "shall have joint legal custody of [their] child," and remand for further proceedings. On remand, defendant's request must be analyzed in the context of the totality of all circumstances; not only the facts now alleged but also, the past history of domestic violence which can affect the context of any dispute. The court must review and weigh all interests, assessing the parties' positions as presented by the evidence and must specifically set forth findings of fact in balancing all interests.

[Finamore v. Aronson, 382 N.J. Super. 514, 524 (App. Div. 2006) (citations omitted).]

Reversed and remanded.

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