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Mary Atherholt v. Michael R. Hunter

January 17, 2013

MARY ATHERHOLT, PLAINTIFF-APPELLANT,
v.
MICHAEL R. HUNTER, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1491-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 19, 2012

Before Judges Grall and Simonelli.

Plaintiff Mary Atherholt appeals from the April 26, 2012 Family Part order, which transferred residential custody of her son, M.H.,*fn1 to his father, defendant Michael Hunter. We reverse and remand for a plenary hearing.

M.H. was born in February 1998. Plaintiff and defendant were divorced in Maryland in 2002. In their divorce judgment, plaintiff was granted sole legal and residential custody of M.H. and defendant was granted parenting time. Defendant subsequently moved to Delaware, where he currently resides. In December 2002, plaintiff moved to New Jersey where, in June 2005, she registered the Maryland divorce.

In January 2010, defendant filed a motion, seeking an order granting him sole legal and residential custody of M.H. In a February 25, 2010 order, the trial judge denied the motion without prejudice. The judge ordered the parties to engage in mediation to determine whether there should be a change in residential custody, and if mediation failed to resolve the matter, to file another motion.

Mediation apparently failed because in August 2010, defendant filed another motion. In a September 24, 2010 order, a different judge denied the motion without prejudice, finding there was no evidence warranting a change in custody at that time. The judge also denied defendant's request for the judge to conduct an in camera interview with M.H., and ordered the parties to attend a custody neutral assessment (CNA). The judge did not set a date for a future hearing after receipt of the CNA report.

The CNA report recommended that residential custody remain with plaintiff with an increase in defendant's parenting time. Defendant then contacted the judge and requested a review of the CNA.*fn2 On May 27, 2011, the parties appeared before the judge for the review. The judge made clear he was not conducting a change in custody hearing that day, and would schedule a plenary hearing if the parties were unable to reach an agreement. Plaintiff's counsel agreed the judge could hold a hearing, but argued there were no changed circumstances warranting a hearing.*fn3

The parties consented to having the judge conduct an in camera interview with M.H. The judge stated he would issue an opinion after completing the interview.

On July 14, 2011, the judge interviewed M.H., who expressed his preference to reside with defendant and visit his mother every other weekend. The judge did not issue an opinion after the interview. Instead, eight months later, he sent the parties a letter advising that on April 20, 2012, he would conduct another in camera interview and hold a hearing.*fn4

On April 20, 2012, the parties appeared in court pro se, and the judge interviewed M.H. M.H., now fourteen years old, expressed his preference to reside with defendant after graduating from the eighth grade at the end of the 2011-2012 school year, and visit his mother every other weekend and in the summer. After the interview, the judge informally questioned the parties about what change in circumstances, if any, had occurred since February 25, 2010. Defendant said that M.H. had now expressed a preference to reside with him, and that there were better educational opportunities for his son at a certain high school in Delaware. Plaintiff said that no changes had occurred and M.H. had equal educational opportunities in New Jersey.

Following the questioning, the judge noted that M.H. had done well to that point and had no health concerns while in plaintiff's care. Nonetheless, he found "it's a point in time where [M.H.'s] future is better prepared at [the high] school [defendant proposed] as opposed to the [high school plaintiff proposed]." The judge found a change in circumstances based on M.H.'s age; M.H.'s preference to reside with his father; the educational opportunities offered by the Delaware high school defendant proposed; and because at M.H.'s "age, a father would have more input into what a son's going through." The judge concluded that "the change in circumstances was [M.H.'s] going into high school, and that . . . it would be in the best interest for [M.H.] to go to [the ...


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