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L.A v. P.Q


March 1, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FD-07-000023-08.

Per curiam.



Submitted February 1, 2012

Before Judges Harris and Koblitz.

Plaintiff L.A. appeals from the December 1, 2010 order of the Family Part that continued joint legal custody of the parties' young daughter Ann (a pseudonym), but granted residential custody in favor of defendant P.Q., a Massachusetts resident. Plaintiff's arguments revolve around her view that the Family Part deprived her of due process of law by conducting a surprise plenary hearing (comprising six testimonial hearings between September and November 2010) in what was only supposed to be document-based cross-motions for a change in the existing custody arrangement. After a review of the record, we are satisfied that plaintiff's due process rights were appropriately safeguarded. Accordingly, we affirm.


The parties were never married to each other. Ann was born in September 2004, and the family resided together in Morris County until March 2006, when defendant alone moved to California.

On October 6, 2006, the Family Part in the Morris Vicinage entered an order setting child support and an initial schedule for parenting time, which provided that after November 2006, "[a]ll future parenting time arrangements shall be as agreed to by the parties, counsel or, if necessary, the Court."

In April 2007, a final restraining order pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, was issued against plaintiff. Temporary physical custody was granted to Ann's paternal grandmother who resided in Long Branch, New Jersey, "subject to defendant's unlimited parenting time in New Jersey. Plaintiff [was provided] parenting time as arranged between plaintiff and [the grandmother]."

By that time, defendant had relocated to Massachusetts. On July 13, 2007, after a custody evaluation, the Family Part entered an order granting the parties "equal[] share physical custody of [Ann] and alternate physical custody every two weeks, or as otherwise agreed, beginning immediately." The order provided that "[p]ick-up and drop-off to be every other Saturday at 1:00 p.m. at the New Haven, [Connecticut] police station, unless otherwise agreed."

Sometime thereafter, plaintiff moved to Essex County. In March 2008, plaintiff became concerned that Ann might have been sexually abused by the adult son (Mr. W.) of defendant's girlfriend Bea (a pseudonym).*fn1 Acting upon plaintiff's application for restraints, the Family Part in the Essex Vicinage continued the parenting time order of July 13, 2007, but prohibited contact between Ann and Mr. W. After investigations in New Jersey and Massachusetts, which included psychological evaluations of Ann and the parties, the allegations of sexual abuse were deemed unsubstantiated. Nevertheless, the court-ordered psychologist in New Jersey found that she "[did] not feel that the possibility that [Ann] was touched inappropriately [could] be ruled out." Thus, she "strongly recommended that there be no further contact between [Ann] and Mr. [W.]." Notwithstanding this caveat, the Family Part entered an oral order -- the parties agree that it was not memorialized in written form -- that permitted contact between Ann and Mr. W. (who was now her step-brother) as long as other family members were present.

In the summer of 2010, when Ann was almost six years old, the parties filed cross-motions seeking to change the shared custody arrangement. Each parent sought to have Ann begin her regular schooling in the locale where each lived: urban North Bergen, where plaintiff resided, versus rural North Brookfield, Massachusetts, where defendant resided. The parties submitted extensive certifications touting why each was the better parent and extolling the virtues of North Bergen and North Brookfield. After one round of oral argument on August 23, 2010, the Family Part convened a second hearing on September 10, 2010.

With both parties and their respective attorneys in attendance on September 10, the court stated the following:

We're going to take testimony this afternoon, because I think -- if I go back to Courtsmart, I think that I clearly indicated that since we were talking about a custody issue that we would have to proceed, potentially, with a plenary hearing.

I did not put in my prior -- in my last order that the parties needed to be prepared to do a plenary hearing today. That is my error.

The court then gave the parties and their attorneys an opportunity to consult and prepare. When the court returned from a thirty-minute recess, both sides became fully engaged in the evidentiary hearing, and no objections were expressed about the court's approach on that day or on any of the subsequent hearing dates.

Over the next two months, the court conducted five more evidentiary hearings. The in-person witnesses included the parties and defendant's spouse. Ann's pediatrician testified by telephone. Full opportunities to examine the witnesses were given to both parties. All of the usual features of a plenary hearing were afforded by the court, and no one objected to the process. After the attorneys delivered their summations, the court reserved its decision.

Two weeks later, on November 30, 2010, the Family Part rendered an oral decision. It found that Ann's best interests were fulfilled by continuing joint legal custody but granting residential custody to defendant in Massachusetts. The court started its analysis with the following:

Since July 13th of [2007], [Ann] has enjoyed two residences; one here in New Jersey and one in Massachusetts. This child has two homes and two custodial parents. For this Court to determine otherwise would fly in the face of all credible evidence that has been provided by both parties. The status quo here is that mom and dad have equal standing to assert claims for residential custody, as both have been primary care givers for this child for over two years.

The court commended both parents, noting the care and attention each gave to their daughter. However, the court noted the following:

[O]ne of the most telling and chilling exchanges came in the cross-examination with mom. Mom doesn't even acknowledge that dad loves his daughter and that he cares for her. She couldn't bring herself to acknowledge that dad has anything to really offer the child and that she has everything to offer the child. That's obviously not an appropriate balanced view of this situation. Both of these parents are well-educated. Both clearly have great gifts to offer this child.

To the contrary, the Court finds that even over dad's anger, which is palpable at times, that he does acknowledge that mom is a critical and important factor in [Ann's] life.

Consequently, the court stated that it was "concerned that there [would] be a significant alienation of the relationship between [Ann] and her dad."

The court expressly reviewed and considered the multi-factor aspects of N.J.S.A. 9:2-4(c) in light of the evidence presented. For the most part, except for plaintiff's acts of domestic violence, the court found both parties' abilities to effectively parent were reasonably well-developed. However, after finding that "it is imperative that the relationship between the child and the mother and child and the father be maintained at all costs," the court held, "this Court does not believe that [this] will occur if this child remains in the care in primary custody of [plaintiff]." Accordingly, primary residential care and custody was granted to defendant in Massachusetts. This appeal followed.


We employ a limited standard of review in appeals from the Family Part. We accord particular deference to the court's fact finding because of its "'special jurisdiction and expertise in family matters.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). This special expertise is not mere lip-service, and we will not second-guess the family court's exercise of sound discretion. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007); see also Walles v. Walles, 295 N.J. Super. 498, 513 (App. Div. 1996) (citing Rova Farms Resort, Inc. v. Invest. Ins. Co., 65 N.J. 474, 483-84 (1974)).

Evidentiary hearings allow trial judges to see and hear witnesses first-hand and therefore they have a "feel of the case that can never be realized by a review of the cold record."

N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (internal quotation marks omitted). Because we cannot acquire such direct knowledge, we rely upon the court of first impression to explain its conclusions. If those findings are soundly based in the record, and comport with all applicable principles of law, we will not intervene. Ibid.

On issues of custody and visitation "'[t]he question is always what is in the best interests of the children, no matter what the parties have agreed to.'" P.T. v. M.S., 325 N.J. Super. 193, 215 (App. Div. 1999) (quoting Giangeruso v. Giangeruso, 310 N.J. Super. 476, 479 (Ch. Div. 1997)). A plenary hearing is ordinarily required to enable the court to identify the best interests of the children involved in a custody dispute. Faucett v. Vasquez, 411 N.J. Super. 108, 127-28 (App. Div. 2009), certif. denied, 203 N.J. 435 (2010); see also R. 5:8-6 (requiring the court to "set a hearing date" if it "finds that the custody of the children is a genuine and substantial issue").

Based on our review of the record, we are satisfied that there was sufficient credible evidence to support the trial court's findings, Pascale v. Pascale, 113 N.J. 20, 33 (1988), and that they, in turn, patently support a conclusion that the best interests of Ann were properly evaluated and advanced.

Plaintiff's arguments do not seriously challenge that aspect of the Family Part's work. Instead, she raises dubious due process arguments that culminate in the contention that "the findings of the trial [c]court should not be given deference as they were elicited at a plenary hearing that neither party was prepared to have." We disagree.

Plaintiff advances an argument rarely encountered on appeal. She claims to be aggrieved by being subjected to the rigors of a plenary hearing. She contends that the court, in September 2010, surprised both sides when it began to hear testimony. That may be true, but no one objected. On appeal, absent palpable prejudice, plaintiff's full participation in the hearing negates her efforts to undo the work of the Family Part. See M.C. III, supra, 201 N.J. at 340-41 (explaining the doctrine of invited error).

"To comport with due process, a judicial hearing requires notice defining the issues and an adequate opportunity to prepare and respond." McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559 (1993) (citing Nicoletta v. N. Jersey Dist. Water Supply Comm'n, 77 N.J. 145, 162 (1978)). Plaintiff points out that the Family Part initially signaled that the cross-motions for a change in custody would be decided on the papers alone. That may be correct, but by the time the parties returned to court in September 2010 it was obvious that the court wanted more than just a paper record to decide the ardently contested issues. "[A] trial court has wide discretion in controlling the courtroom and the court proceedings," and any alleged missteps "must be reviewed within the context of the entire record in order to determine whether it had [a] prejudicial impact." D.G. ex rel. J.G. v. N. Plainfield Bd. of Educ., 400 N.J. Super. 1, 26, (App. Div.) (citations omitted), certif. denied, 196 N.J. 346, cert. denied, 555 U.S. 1085, 129 S. Ct. 776, 172 L. Ed. 2d 756 (2008). The totality of the circumstances convinces us that all of the parties were treated fairly and in accordance with law.

The case continued for several testimonial sessions. In her appellate brief, plaintiff does not present any specific evidence that she was prejudiced by the manner in which the court proceeded. The conclusory statement that the plenary hearing was one "that neither party was prepared to have," fails to illuminate any actual impediment to the presentation of her case or to explain how it worked to disadvantage her or her attorney's preparation.

Contrary to plaintiff's assertions, the Family Part did not rush to judgment. The hearings extended over a period of three months, and the court reserved decision before rendering its final conclusions. The oral exposition delivered after Thanksgiving 2010 fully addressed the positions of the parties; carefully applied the applicable law, in particular, N.J.S.A. 9:2-4(c); and sensitively determined the facts. These are the hallmarks of an appropriate exercise of discretion, and we unhesitatingly validate the Family Part's actions.


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