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L.J.M v. B.S.B

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 4, 2012

L.J.M., PLAINTIFF-RESPONDENT,
v.
B.S.B., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FD-04-1682-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 14, 2011

Before Judges A. A. Rodriguez and Fasciale.

B.S.B. (Father) appeals from paragraph 1 of the February 16, 2010 Family Part Order, which modified the existing parenting time arrangement with respect to his daughter. We affirm.

Father and L.S.M. (Mother) were never married. Their daughter, who is nearly eleven-years-old, has resided with Mother since her birth. Pursuant to a December 5, 2001 consent order, both parents share joint legal custody of their daughter, with Mother's home being designated as the primary residence. The consent order provides that Father "shall enjoy parenting time"; however, it does not specify a schedule. A schedule has evolved based on the parents' practice. Since June 2005, Father has had overnight visitation on alternating weekends and visitation on Wednesdays from 2:30 p.m. to 8:00 p.m.

In July 2009, Mother moved to modify the parenting time status quo. Father cross-moved to modify his visitation to extend from 2:30 p.m. on Wednesdays to 7:30 a.m. on Thursdays.

Judge Deborah Silverman Katz heard oral arguments and denied the motion and cross-motion. She determined that the present parenting time status quo should remain unchanged. The judge found that neither party has made a prima facie showing of a change in circumstances.

Father appeals, contending that he has shown significant change in circumstances, and that this showing warrants a plenary hearing. He also contends that the judge erred in denying his request to extend his Wednesday parenting time based on a finding that there was no significant change in circumstances, and that the best interest of his child warrants a change of the current visitation schedule. We are not persuaded.

"It is well settled that the law favors visitation and protects against the thwarting of effective visitation rights." Wilke v. Culp, 196 N.J. Super. 487, 496 (App. Div. 1984) (citing In re J.S. & C., 129 N.J. Super. 486, 487, 489 (Ch. Div. 1974), aff'd o.b., 142 N.J. Super. 499 (App. Div. 1976), certif. denied, 99 N.J. 243 (1985)). "[C]courts should endeavor that children of separated parents should be imbued with love and respect for both parents, and where children are in custody of one parent, the court should endeavor to effect this facet of the children's welfare by conferring reasonable rights of visitation on the other parent." Ibid. (citing Daly v. Daly, 39 N.J. Super. 117, 123 (J. & D.R. Ct. 1956), aff'd 21 N.J. 599 (1956)).

"'[T]he matter of visitation is so important, especially during the formative years of a child, that if a plenary hearing will better enable a court to fashion a plan of visitation more commensurate with a child's welfare' a plenary hearing must be required by the court even if the parties have waived it." [Fusco v. Fusco, 186 N.J. Super. 321, 327 (App. Div. 1982) (quoting Wagner v. Wagner, 165 N.J. Super. 553, 555 (App. Div. 1979)).]

"[A] primary concern in determining questions of visitation and custody is the best interests of the child." Wilke, supra, 196 N.J. Super. at 497 (citing Fiore v. Fiore, 49 N.J. Super. 219 (App. Div.), certif. denied, 28 N.J. 59 (1958)).

The courts of New Jersey have expressed a policy encouraging protection of family relationships by favoring full visitation rights in order to insure that [the children] shall not only retain the love of both parents but shall at all times and constantly be deeply imbued with love and respect for both parents. [In re J. S. & C., supra, 129 N.J. Super. at 491-492 (alteration in original) (quoting Smith v. Smith, 85 N.J. Super. 462, 469 (J. & D.R. Ct. 1964) (internal quotation marks omitted).]

"A party seeking modification of a judgment, incorporating a [property settlement agreement] regarding custody or visitation, must meet the burden of showing changed circumstances and that the agreement is now not in the best interests of a child." Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div.) (citing Todd v. Sheridan, 268 N.J. Super. 387, 398 (App. Div. 1993), certif. denied, 178 N.J. 34 (2003)). However, "[a] judgment, whether reached by consent or adjudication, embodies a best interests determination. It is only when such a determination has been made and a judgment entered that a moving party must bear the threshold burden of showing changed circumstances which would affect the welfare of the children." Todd v. Sheridan, 268 N.J. Super. 387, 398 (App. Div. 1993) (citing Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958)).

Applying that standard here, we affirm. The current visitation schedule was set by the agreement of the parties. The schedule is not contrary to the best interest of the daughter. We conclude that Judge Silverman Katz's finding that neither party has made a prima facie showing of changed circumstances is supported by the motion record.

Affirmed.

20120904

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