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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; ...

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