On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FD-07-000023-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...