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Fischer v. Fischer

July 16, 2010

MICHAEL FISCHER, PLAINTIFF-RESPONDENT,
v.
KIM FISCHER (N/K/A PAYNE), DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-0260-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 22, 2010

Decided June 9, 2010

Motion for Reconsideration Granted July 9, 2010

Before Judges Baxter and Alvarez.

Defendant Kim Fischer, now known as Kim Ann Payne, appeals from a trial court decision denying her custody of the two children born of her marriage to plaintiff Michael Fischer. For the reasons that follow, we affirm.

The parties divorced January 3, 2001. The children, both sons, are fourteen and twelve, and were initially in defendant's custody. In February 2006, defendant encountered problems with drug use and mental health issues which brought her to the attention of the Division of Youth and Family Services (Division). In order to avoid the initiation of formal proceedings for removal, she placed all of her children with their respective fathers, including the two children whose custody is now at issue.

Accordingly, on March 3, 2006, plaintiff obtained temporary residential custody of the children by way of order to show cause. Defendant was directed in that order to "participate in all services per [Division] case plan[s]" dated February 28, 2006 and March 3, 2006.

The next order issued on April 4, 2006, when plaintiff was granted custody and defendant was granted supervised visitation. Modification of the limited visitation afforded to defendant was made contingent upon her completion of substance abuse treatment and the "receipt of a favorable report." Defendant has since successfully addressed her drug problem. Around that time, she was also diagnosed as suffering from bipolar disorder and has since sought treatment and stabilized.

On October 5, 2007, the trial court denied defendant's first application to regain custody of the children. Nonetheless, defendant's parenting time was expanded via a consent order entered on the same day; other issues not relevant to this appeal were decided as well. The court's ruling was grounded in part upon the absence of changed circumstances as to the welfare of the children since the entry of the April 4, 2006 order. On March 20, 2008, the court ordered unsupervised visitation as a result of additional post-judgment litigation.

On July 10, 2009, the court denied defendant's second application to regain custody of the children. That decision was also made without a plenary hearing. The court stated in a written opinion that it was "not satisfied that Defendant has demonstrated significant changed circumstances to warrant a change in custody. The children are stable in their home life. There is no reason to change custody. The court will slightly adjust parenting time to lengthen the period of Defendant's weekend visitation."

Thereafter, defendant sought reconsideration of the decision. Defendant asserted that plaintiff was lying to the court when he said that the children were thriving under his care and attached report cards to illustrate that they were getting below-average grades in several essential subjects. She stated that her home-schooled daughter tested above her grade level "in most subjects," and that the children's schoolwork would improve if they came to live with her.

The request for reconsideration was denied on August 28, 2009. The court reiterated that the positive developments in defendant's life, including her improved financial position after a recent marriage that allowed her to stay at home full-time, did not constitute a "basis for a modification of custody" or "a substantial change of circumstances that would warrant the removal ...


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