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Jorge Hernandez v. Tracy Hamolko


June 10, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FD-02-1577-08.

Per curiam.


Submitted: May 25, 2011

Before Judges Axelrad and J. N. Harris.

In this Family Part matter, defendant mother appeals from an order of October 19, 2010, denying her request for a best interests evaluation, a hearing regarding custody, and a change in residential custody, as well as from the December 3, 2010 order denying her motion for reconsideration. We affirm.

The subject of this appeal is the parties' three-and-a-half year-old daughter. Pursuant to plaintiff father's emergent application, by order of August 18, 2008, he was given physical custody of their daughter, then almost one year old, and mother was granted supervised parenting time. By agreement of the parties, both represented by counsel, the court entered an order dated March 27, 2009, providing for joint legal custody with father remaining the parent of primary residence (PPR), mother having unsupervised parenting time, and beginning on July 15, mother's parenting time expanded to "an equal 50/50 shared parenting schedule."

On August 25, 2010, mother filed a motion requesting that residential custody be transferred to her, asserting a change in circumstances based on her recovery from post-partum depression, her medical clearance to return to work on a full-time basis, her superior educational background and consistent work schedule, her extended family support, and purported harassing conduct by father. Father cross-moved for an order granting him sole physical, residential, and legal custody and requiring mother to have supervised visitation. His certification alleged a litany of incidents demonstrating mother's "alarming, bizarre, [and] irrational behavior," and referenced numerous incidents of turmoil surrounding visitation on holidays allegedly instigated by mother. Father further certified his work schedule was flexible in that he adjusted his schedule or used vacation time when their daughter was with him on normal working days.

Following oral argument on October 19, 2010, the court denied the motions with the exception of addressing the disputes over holiday parenting time and the logistics of pick-up and drop-off, memorialized in an order of the same date. Following oral argument on December 3, 2010, the court denied mother's motion for reconsideration and father's cross-motion for counsel fees. This appeal ensued.

On appeal, mother asserts as error the court's failure to order a best interests evaluation, conduct a plenary hearing on modification, and transfer residential custody, as well as its denial of reconsideration. Based on our review of the record and applicable law, we do not find any of these challenges to be persuasive.

In our review of a custody issue, the conclusions of a trial judge are entitled to great weight and will not be lightly disturbed on appeal unless his or her findings could not reasonably have been reached on sufficient credible evidence present in the record. Beck v. Beck, 86 N.J. 480, 496 (1981).

In any custody determination, "the primary and overarching consideration is the best interest of the child." Kinsella v. Kinsella, 150 N.J. 276, 317 (l997). To establish a prima facie case for modification of a custody arrangement, the moving party must show a substantial change in circumstances, and that the changed circumstances affect the welfare of the child such that her best interests would be better served by modifying custody. Mimkon v. Ford, 66 N.J. 426, 438 (1975); Hand v. Hand, 39l N.J. Super. 102, 105 (App. Div. 2007); Chen v. Heller, 334 N.J. Super. 361, 380 (App. Div. 2000); Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958).

A judge must consider a request for modification in accordance with the procedural framework established by the Supreme Court in Lepis v. Lepis, 83 N.J. 139, 157-59 (1980). Under Lepis, the first question is whether the party seeking modification has made a prima facie showing of a substantial change in circumstances. Id. at 157; Hand, supra, 39l N.J. Super. at 105. If a prima facie showing is made, then Lepis requires the judge to consider whether discovery is needed and to define its scope. Lepis, supra, 83 N.J. at 157-58; R. 4:10-2; R. 5:8-1 to -6. Following discovery, if there is a genuine dispute of fact regarding the welfare of the child, then a plenary hearing must be held. Lepis, supra, 83 N.J. at 159; Hand, supra, 39l N.J. Super. at l05.

To determine whether there is a prima facie showing of changed circumstances, a judge must consider the terms of the order he or she is asked to modify and compare the facts as they were when that order was entered with the facts as they are at the time of the motion. Sheehan, supra, 51 N.J. Super. at 287-88.

In evaluating mother's motion, Judge Guida applied the proper legal standard and concluded she had not demonstrated "a substantial and significant change in circumstances" to warrant further proceedings or modify the parental custody arrangement established the prior year. On reconsideration, the court elaborated, explaining that while mother's circumstances may have improved regarding her mental condition and employment stability, their daughter appeared to be doing quite well in the present arrangement; accordingly, the evidence did not demonstrate their daughter's interests would be better served by transferring custody to mother at that time.

Mother places a significant amount of emphasis on the obvious acrimony between the parties as a basis upon which to transfer physical custody to her. However, this consideration is primarily linked to the issue of joint legal custody, Nufrio v. Nufrio, 34l N.J. Super. 548, 550 (App. Div. 200l), which she does not contest, so even if mother became the PPR, she still would have to consult and communicate with father on a variety of issues pertaining to their daughter. Even if the inability of the parents to communicate would warrant modification of residential custody, the bulk of mother's claims contained in her moving papers pertained to disagreements over pick-ups, drop-offs, and holidays. While Judge Guida did not modify residential custody as mother requested, he attempted to resolve these issues and used his sound discretion to fashion an arrangement that would help alleviate some of these logistical and scheduling problems, while still giving their daughter the benefit of having equal time with both parents.

Moreover, the record is clear the parties had a contentious relationship prior to the March 2009 consent agreement. The touchstone of modification is changed circumstances since the order was entered. See, e.g., Hand, supra, 39l N.J. Super. at 105.

As to the best interests consideration, mother's claims that father's family is not supportive and that their daughter will be better off with her are unsubstantiated. The fact she has a social work background also does not establish a prima facie case because father, the PPR under the parties' agreement, appears to be have provided a healthy and nurturing environment for their daughter during the two years she resided with him prior to mother's application to transfer physical custody. Furthermore, mother's self-serving certifications detailing father's purported ineptitude and mother's own virtues as a parent are an insufficient basis upon which to anchor a custody modification. See Fusco v. Fusco, 186 N.J. Super. 321, 327 (App. Div. l982) (holding self-serving certifications are insufficient evidence of the child's best interests). The simple fact of the matter appears to be that mother's improved circumstances make it better for their daughter to be with her than before, but it does not make it any worse for their young daughter to have father as PPR and have equal time with both parents.

Accordingly, a best interests evaluation and a plenary hearing were unnecessary at this time. See Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 5:3-3 (2011) (noting that a custody expert should not be appointed by the court without "some demonstration of good cause therefor"). See also Lepis, supra, 83 N.J. at 159 (noting that conclusory allegations are disregarded in determining whether a plenary hearing is necessary); Hand, supra, 39l N.J. Super. at lll-12 (holding that conclusory and unsubstantiated claims are insufficient to warrant a plenary hearing in a custody modification case and where a party is unable to present a prima facie case of changed circumstances adversely affecting the welfare of the child, there is no need for a plenary hearing).

The trial court also properly concluded mother had not met any of the criteria for reconsideration. Mother neither presented new evidence nor pointed to any "incorrect or irrational basis" upon which the court based its decision, nor did she demonstrate the court failed to consider probative, competent evidence before it. See R. 4:49-2; D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. l990).



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