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Dunn v. Willis


October 6, 2010


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.


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 father preferred a change in custody because it would allow him and his younger child to spend more time with his son, which they could not do when the child was visiting his parents under the terms of the January 28, 2003 order.

After hearing argument on the motion, the judge concluded that defendant failed to make a showing of changed circumstances adequate to warrant any further proceedings. He also denied defendant's request to interview the child or appoint a guardian ad litem.

The judge's determinations must be considered in the context of the procedural history. The judge who addressed this motion had issued the orders entered in December 2007 and June 2008. On both prior occasions, the judge issued orders detailing the parties' respective obligations relevant to parenting time and decisions about the child's activities and care. The judge's discussion of the historical facts during argument on the motion demonstrates his familiarity with the family and the prior judicial proceedings.

"A party seeking to modify custody must demonstrate changed circumstances that affect the welfare of the child[]." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007); see Borys v. Borys, 76 N.J. 103, 115-16 (1978); Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958). There is no question that it was proper for the judge to apply the standard that is used to resolve disputes about change in custody between two parents. When the judge ruled on defendant's application, the child's maternal grandparents had stood in the place of the child's parents for six of the eleven years of the child's life. Moriarty v. Bradt, 177 N.J. 84, 116 n.3 (2003), cert. denied, 540 U.S. 1177, 124 S.Ct. 1408, 158 L.Ed. 2d 78 (2004); V.C. v. M.J.B., 163 N.J. 200, 226-27 (2000).

After reviewing the record, we cannot conclude that the judge erred in determining that the showing of changed circumstances was inadequate to establish a prima facie case warranting further inquiry into the best interests of the child, an interview with the child, appointment of a guardian ad litem or a plenary hearing. The circumstances relevant on this application were only those that had changed since April 2008. Most significantly, defendant's success in addressing the circumstances that led to the January 28, 2003 order was known in 2008.

The only evidence of circumstances that had changed during the relevant period were the impending departure of the child's half-sister from the home of the maternal grandparents and the strengthening of the child's relationship with his father and his father's younger child. There was no evidence that the child's half-sister had been his caretaker, or that he was not doing well with his maternal grandparents. There was nothing to suggest that the child was being deprived of the opportunity to have a meaningful relationship with both of his parents and his half-siblings. Moreover, his counselor reported that he said he had "gotten used to" dividing his time between his maternal and paternal grandparents and his mother, who was by then facilitating his relationship with his father.

Nor is there anything, other than the parents' representations about the child's wishes based upon the departure of his half-sister, to suggest that the child's interests would be better served by a change in custody.

Despite the fact that defendant's parents have cared for her son for many years, the certifications submitted on this motion and the several prior orders demonstrate that the relationship between defendant and her parents is less than ideal. There is nothing in this record to indicate that defendant, or the child's father, recognize that the maternal grandparents have cared for their son which presumably has allowed him to develop a special relationship with them. The child's relationship with his primary caretakers and the risk of harm likely to result if it is severed are facts that are relevant to the significance of the circumstances that have changed.

In short, this is not a case in which the judge decided a "genuine and substantial" issue of custody involving disputed facts on the basis of conflicting affidavits or without hearing from a child approaching the age of majority. See Mackowski v. Mackowski, 317 N.J. Super. 8, 11-14 (App. Div. 1998) (finding error in the judge's failure to comply with Rule 5:8-6 and interview a sixteen-year-old child to consider whether her undisputed preference for a change in custody was the product of an intelligent decision as contemplated by N.J.S.A. 9:2-4). This is a case in which the information was inadequate to raise a genuine dispute about whether circumstances that had changed since the last application were substantially affecting the child's welfare.

Due to the procedural history of this case, there is reason to suspect that additional applications will follow. We urge any party seeking modification to focus on the realities of the circumstances impacting the welfare of the child as they exist at that time. Those circumstances include the child's longstanding residence with his maternal grandparents and its impact on the relationships between the adults in this child's life. We also recommend the judge review Mackowski before deciding that the showing offered is inadequate to warrant further inquiry. The judge should consider the complexity of the relationships between the adults and the child as they have developed under the existing order.



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