July 22, 2010
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FD-14-552-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 parenting her son" and fit to parent.
On November 17, 2007, there was an incident involving the parties that resulted in father obtaining the previously discussed TRO against mother. Father had advised mother that he would not allow J.S. to travel with her to Maryland due to his concerns that mother's driver's license was suspended. Mother showed up at father's residence and the police were contacted.
Father entered into evidence a copy of a court record indicating that mother was involved in proceedings in Maryland for violating the divorce settlement agreement from her ex-husband denying him visitation rights to their daughter.
Mother's ex-husband is precluded from visiting with his daughter due to his failure to comply with the divorce decree requiring him to undergo counseling.
On April 7, 2008, the judge interviewed J.S. prior to rendering a custody determination. This interview revealed that J.S. was happy living with his father but he wanted to live with mother because he had not lived with her since he was four years old. The time that J.S. spends with mother is "more family-oriented." J.S. indicated that father interferes with his relationship with mother, in particular with scheduled visitations. Mother is "more open" than father. Moreover, J.S. stated that it was "important" that he be able to pursue his educational interests if mother is awarded custody.
Judge Weisenbeck issued a written decision finding that "changed circumstances" existed requiring a change in custody. Consequently, the judge entered an order awarding mother primary, physical custody of J.S. Father filed an appeal and moved for a stay and/or summary disposition. We denied this motion. T.C. v. W.S., M-0873-09 (App. Div. Nov. 18, 2009).
On appeal, father contends that the Family Part did not adhere to the best interests standard that governs child custody decisions. He argues that the judge did not place a "substantial burden of proof" on mother to demonstrate a change in circumstances requiring a modification. Moreover, father argues that the judge erred in disregarding evidence that the Maryland court held mother in contempt for denying access of her ex-husband to her daughter, which supported father's contention that mother cannot provide a stable home environment. Finally, father contends that the judge erred in not applying the additional standard pertaining to relocating J.S. out of state. We disagree.
It is well-settled that "a judgment involving the custody of minor children is subject to modification at any time upon the ground of changed circumstances." Innes v. Carrascosa, 391 N.J. Super. 453, 500 (App. Div. 2007) (citing Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div.), certif. denied, 28 N.J. 147 (1958)). The party seeking to modify a custody judgment bears the burden of proof. Ibid. Moreover, the moving party must demonstrate a change in circumstances affecting the welfare of the child. Sheehan, supra, 51 N.J. Super. at 287-88.
Custody determinations are governed by the bests interests of the child standard. Terry v. Terry, 270 N.J. Super. 105, 119 (App. Div. 1994). The primary consideration is the happiness and welfare of the child, specifically the "safety, happiness, physical, mental and moral welfare of the child." Sheehan, supra, 51 N.J. Super. at 291. Judicial-custody determinations are controlled by N.J.S.A. 9:2-4, which requires the court to take into consideration the following factors prior to making an award of custody: the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; 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; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child's education; the fitness of the parents; the geographical proximity of the parents' homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents' employment responsibilities; and the age and number of the children. A parent shall not be deemed unfit unless the parents' conduct has a substantial adverse effect on the child. [Ibid.]
Here, the judge found that it was in J.S.'s best interest that his primary custody be transferred to mother. The judge based this decision on: (1) father's failure to "agree, communicate and cooperate;" (2) father's unwillingness on at least two occasions to allow parenting time; (3) J.S.'s sincere, consistent and unwavering desire to live with mother; and (4) Father's inability to constructively co-parent with mother. The judge also noted that mother's testimony was credible and J.S.'s desire to live with mother was the product of his own free will.
The judge's findings are amply supported by adequate, substantial, credible evidence in the record. Therefore, these findings "are binding on appeal." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, we are mindful that the findings of Family Part judges are accorded deference due to their "special expertise in the field of domestic relations." Id. at 412-13. Further, we should defer to the trial court's discretionary authority unless the trial court did not consider the controlling legal principles. Beck v. Beck, 86 N.J. 480, 496 (1981). Lastly, the conclusions of trial judges regarding child custody are "entitled to great weight and will not be lightly disturbed on appeal." DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976).
Having carefully examined the record and judging it against the appropriate standard and the principles mentioned above, we conclude that the judge's decision must be affirmed. Moreover, we conclude that father's reliance on Baures v. Lewis, 167 N.J. 91 (2001), is misplaced. There, the court was confronted with a removal of a child from New Jersey, not a change in custody.
Id. at 97-98. The Court recognized that primary consideration in a custody dispute is the "best interest" of the child. Id. at 115. However, in removal cases where the custodial parent seeks to relocate the child, the court considers the interests of the parents and the child. Id. at 115-16. Consequently, in deciding which parent should be awarded primary custody, the court must apply the best interests standard to determine which parent can better advance the child's welfare. Id. at 115. The Baures standards is only applicable in instances where the relocating parent is the parent of primary residence. See O'Connor v. O'Connor, 349 N.J. Super. 381, 398 (App. Div. 2002).*fn1
Father also contends that the judge erred in conducting a custody trial because of mother's history of failing to comply with court orders, i.e., the August 18, 2005 order to undergo a psychiatric evaluation. Father argues that the judge erred in commencing the custody trial without conducting mediation pursuant to Rule 5:8-1. These contentions lack merit.
A plenary hearing must be conducted when a party seeking to modify a custody order demonstrates that "due to a substantial change in circumstances from the time that the current custody arrangement was established, the best interests of the child would be better served by a transfer in custody." Chen v. Heller, 334 N.J. Super. 361, 380 (App. Div. 2000); see also R. 5:8-6. The moving party must demonstrate that there is a genuine and substantial factual dispute regarding the welfare of the child. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). Thus, if the trial court determines that there exists a factual dispute regarding the welfare of the child, a plenary hearing is necessary. Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1975).
We review the trial court's determination whether or not to conduct a plenary hearing pursuant to the abuse of discretion standard. See Hand, supra, 391 N.J. Super. at 112. Thus, we will uphold the trial court's ruling "unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide [of] the mark that a manifest denial of justice resulted." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999). Here, we conclude that the judge did not abuse his discretion in conducting the plenary hearing.
Further, father's contention that mother did not comply with the order dated August 18, 2006 requiring her to undergo a mental health evaluation with Dr. Montgomery lacks merit. The record reflects that Dr. Montgomery wrote a letter to the court indicating that she could not perform the evaluation due to her workload. The court then entered an order dated September 26, 2006 for the parties to agree on a psychologist to perform an evaluation of mother within seven days. The record indicates that Dr. Williams conducted the evaluation. Mother therefore complied with the order. Although the record does not indicate whether the parties agreed in choosing Dr. Williams to perform the evaluation, the report rendered by Dr. Williams is thorough and indicated that Mother was fit for parenting.
Father also contends that: the judge erred by concluding that J.S.'s 2002 letter to the trial court provided support that J.S. wanted to live with mother instead of inferring the presence of child alienation; review of the court's April 8, 2008 interview of J.S. is necessary due to the "contradictions" contained in the court's November 16, 2006 interview of J.S.; and the judge erred in modifying the previous custody order without an expert evaluation of mother and a social investigation of J.S.'s life in New Jersey. We are not persuaded.
These contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e). We merely note that the tape of the interview was blank and the judge provided a letter statement, which was based on the judge's contemporaneous notes of the interview. Unlike the situation in State v. Thompson, 405 N.J. Super. 163 (App. Div. 2009), and State v. Izaguirre, 272 N.J. Super. 51, 56-57 (App. Div.), certif. denied, 137 N.J. 167 (1994), the child interview here was conducted by the judge and was sealed. The participation of the parties in reconstructing the record would not have improved the accuracy and completeness of the contents of the interview. Regardless, the court conducted an initial interview of J.S. in 2006. This interview, as did the 2008 interview, revealed that J.S. preferred to live with mother. The report of by Dr. Williams also indicated that mother was fit to parent. Thus, there is sufficient, credible evidence to support the judge's findings.