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Aisha Sultana v. Mohammed Quadri


August 24, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1360-07.

Per curiam.


Submitted February 28, 2012

Before Judges Yannotti and Espinosa.

Plaintiff appeals from an order denying her motion to reinstate parenting time pursuant to a judgment of divorce. We reverse.

Plaintiff and defendant were married through an arranged marriage in 2003, and divorced by a final judgment of divorce (JOD) entered March 25, 2008. During their marriage, they had one child, Heather,*fn1 who was born in April 2006.

The JOD provided that the parties would share joint legal and physical custody of Heather but identified plaintiff as the primary custodian. The parties agreed that defendant would have parenting time every Tuesday evening until Thursday morning and alternating weekends. At the time of their divorce, plaintiff was a third-year resident in pediatrics at the University of Medicine and Dentistry of New Jersey. The JOD further stated that she "reserve[d] the right to apply to the court for

[r]elocation" with Heather.

Plaintiff accepted a position as a pediatrician in Indiana after she was not offered any positions in New Jersey. In February 2009, she filed an order to show cause and, by order dated February 18, 2009, the court permitted her "to immediately relocate to the state of Indiana with [Heather.]" Defendant filed opposition and a motion for a change in custody. In May 2009, the court entered another order, which denied defendant's motion for a change in custody, ordered a custody evaluation, and amended the prior order to rescind the court's permission for removing Heather from the state "until further Order of the Court."

Plaintiff commenced her employment in Indiana in February 2009. Heather remained in New Jersey with defendant, who had remarried. The court-ordered custody evaluation, which was not completed until July 2009, recommended a shared custody arrangement.

In December 2009, plaintiff's motion for permission to relocate with Heather remained undecided. Plaintiff withdrew her motion and filed a new motion, to reinstate parenting time pursuant to the JOD and to appoint a parenting coordinator. In her certification, plaintiff stated that she had recently accepted employment in New Jersey, which was to begin in January 2010.

The trial court appointed a parenting coordinator, Linda Schofel, and held a one-day hearing on February 28, 2011. At the time of the hearing, the parenting schedule in place provided that defendant was to remain the primary custodian and plaintiff was to have parenting time from Tuesday evening to Wednesday morning and on alternating weekends.

Schofel testified that upon plaintiff's return to New Jersey, defendant refused to consent to a fifty-fifty split in parenting time. Based upon her observations of Heather with the parties and defendant's wife, she stated that Heather had "a very warm relationship" with each of them. She reported on the accommodations each provided for Heather, noting that plaintiff's apartment contained a "nice size bedroom" for Heather and that, in defendant's home, Heather had her own bed but shared a bedroom with defendant and his wife.

Schofel expressed concern about the "animosity" between plaintiff and defendant, that they were not "working together" and that their communication was "pretty much non-existent." She believed that Heather was caught in the middle of their disputes. Plaintiff told Schofel that Heather "shuts down . . .

[a]nytime there is a pick-up and drop off directly to [defendant]." Schofel testified that defendant could be "aggressive" and plaintiff "[felt] intimidated by [him]." She also noted that plaintiff's curt manner of communication made it difficult for defendant to respond in any substantive manner. Schofel recommended that the parties meet with her to work through their issues for Heather's benefit.

Plaintiff testified and expressed her concern that Heather slept in defendant's bedroom. She also noted that Heather refused to bring anything, including prescription medication, from plaintiff's home to defendant's. She also stated that defendant discouraged Heather from wearing nail polish and visiting plaintiff in Indiana.

If the parenting schedule set forth in the JOD were reinstated, plaintiff testified that she would plan her work hours to maximize her time with Heather. Plaintiff noted that she had a "wonderful extensive support" system that could assist her in caring for Heather. She added that she would attempt to "foster a relationship" with defendant if she received primary custody.

Defendant also testified at the hearing and denied being aggressive. He also said that, although Heather slept in the same bedroom with him and his wife, there was a "separation thing" between the beds. Defendant agreed with the current parenting setup, which, he said, gives Heather a "very stable life." He has never had any trouble caring for Heather, as the two "share a very, very strong bond." Defendant testified that he works no more than six hours per day and spends the remaining time with his daughter. Heather has an excellent relationship with defendant's wife, who interacts with and cares for Heather.

Plaintiff, he said, made unannounced visits to see Heather and abused phone privileges by repeatedly calling Heather and making her feel uncomfortable. Defendant further testified that Heather had discipline and hygiene issues when she returned from plaintiff's and was often sick or dressed poorly. He also testified that, when Heather stayed with plaintiff, plaintiff did not permit Heather to speak with defendant.

At the close of evidence, the court reserved decision. On August 1, 2011, the court denied plaintiff's motion to reinstate the prior parenting schedule pursuant to the JOD. The court's ruling consisted of a single statement, that defendant "shall be the parent of primary residence on the grounds that he has for the last two years provided a stable home environment for the child."

In this appeal, plaintiff argues that reversal is required because the trial judge failed to conduct a best-interests analysis and, further argues that a best-interest analysis mandates the return of primary residential custody to her. We agree that the trial court erred in failing to conduct a best-interests analysis, and that therefore, a remand is necessary.

In making custody determinations, "it is well settled that the court's primary consideration is the best interests of the children." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (citing Kinsella v. Kinsella, 150 N.J. 276, 317 (1997)). In particular, when a party seeks to modify a custody arrangement, he or she "must demonstrate changed circumstances that affect the welfare of the children." Ibid.; see also Borys v. Borys, 76 N.J. 103, 115-16 (1978).

To assess the best interests of the children, a court must consider the factors set forth in N.J.S.A. 9:2-4(c). Those factors are: the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child's education; the fitness of the parents; the geographical proximity of the parents' homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents' employment responsibilities; and the age and number of the children.

The trial court must both consider these statutory factors and "must also make a record referencing the statutory factors it has considered and the reasons for its custody determination." J.A. v. A.T., 404 N.J. Super. 132, 145 (App. Div. 2008) (citing Gubernat v. Deremer, 140 N.J. 120, 139 (1995)). When it fails to do so, a remand is required. See, e.g., Luedtke v. Shobert, 342 N.J. Super. 202, 217-19 (App. Div. 2001).

The record here reflects two caring and competent parents whose animosity toward each other may have compromised the quality of life they provide for their daughter. The disposition of the custody and parenting times issues required consideration of the statutory factors and the court's direction toward addressing the issues that impair their ability to resolve issues with their daughter's best interest in mind.

The trial court provided only a summary justification for its ruling, awarding primary custody to defendant "on the grounds that he has for the last two years provided a stable home environment for the child." The court did not cite any of the factors listed in N.J.S.A. 9:2-4(c) and failed to make any written findings addressing Heather's best interests or any changed circumstances. A remand is thus required.

We reverse the August 1, 2011 order and remand this matter to the trial court to make a record referencing the statutory factors it has considered and the reasons for its custody determination. We do not retain jurisdiction.

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