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Angelica Yvette Sanchez v. Julio Rivera

June 12, 2012

ANGELICA YVETTE SANCHEZ, PLAINTIFF-APPELLANT,
v.
JULIO RIVERA, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FD-16-000825-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 1, 2012 -

Before Judges Reisner and Simonelli.

Plaintiff Angelica Sanchez appeals from the August 16, 2011 Family Part order, which transferred temporary residential custody of her daughter, M.R.,*fn1 to the child's father, defendant Julio Rivera. We affirm.

Plaintiff and defendant were in a dating relationship when M.R. was born in March 2003. The parties separated approximately one year later. Plaintiff subsequently gave birth to M.R.'s two half-siblings, and they all moved into plaintiff's mother's apartment. Because the apartment was small, M.R. slept in the living room, where she frequently stayed up late on school nights watching television.

On April 7, 2004, plaintiff filed a complaint for residential custody of M.R., and on May 17, 2004, defendant filed a counterclaim for residential custody. The parties entered into a consent order on June 29, 2004, which granted them joint legal custody of M.R., granted plaintiff residential custody, and granted defendant parenting time. The court subsequently entered an order on December 7, 2004, requiring defendant to pay $90 per week for child support, retroactive to October 13, 2004.

On March 11, 2005, defendant filed an application for a change in custody, alleging that plaintiff was not properly caring for M.R. In an April 15, 2005 order, the trial judge denied the application, but granted defendant additional parenting time. Thereafter, plaintiff filed several applications relating primarily to increasing child support. The last application resulted in a July 27, 2010 order, which increased child support to $159 weekly.

Beginning in November 2010, defendant began receiving notices from M.R.'s elementary school about his daughter. For example, defendant received a November 3, 2010 letter from the principal advising that as of October 29, 2010, M.R. had been late to school fourteen times, which disrupted her school day and most likely adversely affected her academic progress. M.R.'s subsequent second marking period report card revealed that out of eighty-nine school days, she had been late forty-seven times, or more than fifty percent of the school year to that point. In addition, M.R.'s teacher advised defendant that M.R.'s frequent lateness interrupted the classroom routine and set M.R. behind in class work.

Defendant received a January 6, 2011 letter from the principal advising that although plaintiff had purchased a program for M.R. to receive breakfast at school, the child was not eating breakfast on a regular basis because she was late to school, and she was not eating breakfast at home. M.R.'s teacher sent defendant emails in January and February 2011, advising that M.R. was late several times and did not have breakfast.

Based on these notices, on February 14, 2011, defendant applied for a change in custody. At a hearing on March 7, 2011, defendant testified and presented the above documentary evidence to the trial judge. Plaintiff testified that she has two other children to care for in the morning in addition to getting herself ready for work. She admitted that M.R. had been late for school and missed breakfast, but placed the blame for this on M.R., claiming that the child did not listen to her and had trouble getting up in the morning and getting herself dressed for school. Defendant responded that M.R. was never late for church and communion classes when she was with him on Sundays, she had a room of her own in his house, and she was still sleeping in the living room at plaintiff's home despite notice to plaintiff from the Division of Youth and Family Services (the Division) to obtain a bed for M.R.*fn2

The judge ordered a best interests evaluation with Dr. Paul Dasher. Thereafter, in May 2011, defendant received a letter from the principal at M.R.'s school advising that M.R. was late to school eighty-five times during the school year to that point, and this was "causing a disruption to [M.R.'s] school day and [was] most likely adversely affecting . . . her academic progress."

Dr. Dasher conducted individual interviews with plaintiff, defendant, M.R., plaintiff's mother, defendant's fiance, and the fiance's mother. He also conducted joint and bonding interviews with plaintiff, defendant, and M.R., and reviewed records from M.R.'s school, the Division, and the court. Dr. Dasher reported the results of the interviews and his document review in an August 12, 2011 written report, and concluded for the reasons stated therein that it was in M.R.'s best interests to reside primarily with defendant, with plaintiff having liberal parenting time. The doctor opined that "if the current situation persists, [M.R.]'s recent adjustment difficulties . . . could intensify[,]" and plaintiff does not understand how overburdening M.R. with parental responsibilities and failing to properly supervise her late night television and chronic lateness is affecting M.R. He also concluded that "if [M.R.] were to continue to be confronted with these issues in her mother's home, it is likely that her anger and frustration will intensify and there will be attendant behavioral problems more severe than what [she] is expressing at this time."

At a second hearing before a different judge, plaintiff did not dispute the contents of Dr. Dasher's report. Instead, she complained about the length of time he had spent with her, and alleged that he failed to return her telephone calls, was reluctant ...


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