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T.C. v. W.S.

July 22, 2010

T.C., PLAINTIFF-RESPONDENT,
v.
W.S., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FD-14-552-01.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 17, 2010

Before Judges Rodríguez and Reisner.

W.S. (father), the father of J.S., a boy now age fifteen, appeals from the order changing residential custody to T.C. (mother), the birth mother. We affirm.

J.S. was born out-of-wedlock in March 1994. The parties have litigated over custody since his birth. Because paternity was contested, father had little contact with J.S. during the year after his birth. Father had contact with J.S. during the second year after paternity was resolved. However, mother's whereabouts were unknown to father over the next two years. Father had no contact with J.S. Litigation was thereafter commenced and father sought to enforce his visitation rights. Thus, for the first five years of J.S.'s life, mother was the parent of primary residence. Due to mother's failure to provide access of J.S. to father, the New York Family Court awarded father primary custody.

In 2000, mother moved to Maryland and father relocated to New Jersey. The parties agreed to confer New Jersey jurisdiction over the custody dispute. New Jersey adopted the custody determination of New York. The Family Part entered numerous orders modifying the parties' parental rights. In 2006, mother sought a modification of custody. Mother claimed that changed circumstances existed because J.S. preferred to live in Maryland with her and father was interfering with her visitation rights.

Judge Thomas L. Weisenbeck ordered the parties to take part in mediation. However, mediation was not conducted because father filed a domestic violence complaint against mother and obtained a temporary restraining order (TRO). Father alleged that mother took J.S. out of state without informing him. This TRO was vacated. The parties also did not reach an agreement to choose a custody evaluator.

Judge Weisenbeck conducted a three-day plenary hearing and interviewed J.S. in 2006 and 2008 to determine his preference. J.S. was unequivocal in his preference to live with mother. During the hearing, mother testified. Father chose not to testify. The judge determined that father failed to cooperate or co-parent with mother and J.S.'s desire to live with mother was an intelligent decision.

Prior to mother filing the underlying complaint, the Family Part temporarily restricted her visitation rights geographically, requiring her visits to take place in New Jersey. Consequently, from August 2007 until November 2007, mother did not visit J.S.

Mother testified that J.S. would attend a top public high school in Maryland, which is ranked as a top high school. However, mother preferred to send J.S. to private school. Mother's aunt would contribute towards the costs of private school. Mother characterized her relationship with J.S. as a "trusting, loving relationship." On the other hand, J.S.'s relationship with father was not a "close relationship" and J.S. did not interact with his step-mother. J.S. indicated to mother that he was "unhappy" living with father.

In 2005, mother was investigated by a Children's Social Service Agency in Maryland regarding J.S.'s burn injury from hot water. Mother's daughter, J.C., who was four years old at the time, threw the cup of hot water because the cup was too hot for her hand. J.S. suffered a second degree burn. Father contacted the agency after learning of J.S.'s injury. Mother's custody was temporarily suspended but the order was vacated. There were no other proceedings of this type.

Dr. Daniel E. Williams conducted a psychological evaluation of mother. He found mother to be "highly motivated to resume ...


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