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Dunn v. Willis

October 6, 2010

ALBERT DUNN, SR., AND DEBRA DUNN, PLAINTIFFS,
v.
LEWIS WILLIS, MERCEDES WILLIS, JANET DUNN AND ALBERT DUNN, JR., DEFENDANTS.
LEWIS WILLIS AND MERCEDES WILLIS, PLAINTIFFS-RESPONDENTS,
v.
JANET DUNN, DEFENDANT-APPELLANT, AND KENNETH PINCKNEY AND ALBERT DUNN, JR., DEFENDANTS.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket Nos. FD-04-1615-99 and FD-04-891-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued August 31, 2010

Before Judges Grall and Alvarez.

Defendant Janet Dunn appeals from the denial of her motion for modification of an order governing custody and parenting time. Because defendant did not make an adequate showing of changed circumstances affecting the welfare of the child, we affirm.

The child whose interests are at stake was born in March 1998, and is now twelve years of age. Defendant is his mother, and Albert Dunn, Jr., is his father.

When the litigation resulting in the initial custody order commenced, the Division of Youth and Family Services was involved with the family. Defendant was having difficulty with alcohol abuse. Although she had stopped drinking in November 2002, she was still participating in an inpatient rehabilitation program. Both the maternal and paternal grandparents filed complaints for custody that were consolidated.

On January 28, 2003, defendant, the maternal grandparents, Lewis and Mercedes Willis, and the paternal grandparents, Albert and Debra Dunn, entered into a consent order. Under its terms, the maternal grandparents had legal and primary physical custody of the child, and the paternal grandparents had visitation on the condition that they not permit the child's father to be present. At that time, the maternal grandparents also had custody of the child's older half-sister, who is defendant's daughter. According to defendant, she agreed to the order to avoid placement of her child with strangers.

There is no dispute that defendant has successfully addressed her alcohol problem. As she progressed, she made numerous attempts to modify the January 28, 2003 order. In August 2003, defendant was awarded parenting time. By May 2004, she had obtained full-time employment and purchased a home within two miles of her son's school, but in October 2004, the court denied defendant's motion for change of custody.

In May 2007, defendant received a Bachelor's degree in nursing from Thomas Jefferson University. On December 20, 2007, the court entered an order increasing her parenting time and denying her application for custody without prejudice. The court directed all parties, including the child's father, to complete a parenting report, participate in a custody and visitation seminar and, thereafter, meet with a mediator. He also directed the parties to meet with a family specialist.

In 2008, defendant was awarded joint legal custody with her parents. Although the order is not included in the record provided on appeal, defendant represents that it was entered on April 1, 2008, and that representation is not disputed. On June 27, 2008, the judge entered an order precluding defendant from enrolling the child in any activity or obtaining non-emergent medical or psychological care for him without first consulting with his maternal grandparents.

Defendant filed this motion to obtain custody of her son in June 2009. The child's father and the child's paternal grandparents supported her application. All four attested to defendant's parental capacity and professional success. The paternal grandparents noted that they would not want to be deprived of their time with the child, however.

In June 2009, defendant was about to complete a Master's degree in nursing and was employed full-time in her field. She and the child's father had restored their relationship to the point that they could communicate and cooperate in matters relating to their child.

According to the parents, their child, who was at that time eleven years of age, was developing a strong relationship with his father and his father's younger child. In addition, the child's half-sister, with whom he had lived in the home of his maternal grandparents, was then eighteen and preparing to leave for college. Acknowledging that their son had previously expressed a preference for staying in his grandparents' home with his half-sister, his parents indicated that the child was now saying he wanted to live with his mother when his half-sister left. When the child discussed his half-sister's departure with a counselor he had been seeing for about nine months, he said he would probably see his sister on weekends and was excited about visiting her at college. Defendant asserted that her son would maintain his relationship with his half-sister if she was awarded custody. The boy's ...


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