D.A. , Plaintiff-Respondent,
Submitted March 19, 2014
Approved for Publication December 22, 2014.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FD-09-1520-02.
The Abraham Law Firm, LLC, attorneys for appellant ( Markis M. Abraham, on the brief).
D'Alessandro & Cieckiewicz, P.C., attorneys for respondent ( Lori Cieckiewicz and Jaclyn Nayar, on the brief).
Before Judges FUENTES, FASCIALE, and HAAS. The opinion of the court was delivered by FUENTES, P.J.A.D.
[438 N.J.Super. 432] OPINION
[438 N.J.Super. 433] FUENTES, P.J.A.D.
Defendant R.C. appeals from the order of the Chancery Division, Family Part denying his motion seeking reconsideration of a prior order of the court which reaffirmed and enforced a parenting time schedule that was part of a Consent Order entered by the parties ten years earlier. Defendant argues the motion judge erred in failing to compel the parties to submit to mediation or alternatively conduct a plenary hearing to address and resolve the disputed material factual issues raised by the parties. Most importantly, defendant argues the judge failed to interview the fourteen-year-old child at the center of this dispute, as mandated by Rule 5:8-6, and failed to " specifically place on the record the factors which justify any custody arrangement not agreed to by both parents." N.J.S.A. 9:2-4(f).
After reviewing the record developed before the Family Part, we agree with defendant's arguments and remand this matter for the trial judge to refer this matter to mediation as required under Rule 5:8-1. If mediation fails to resolve the custody and parenting time issues raised by the parties, the judge shall then conduct a plenary hearing to resolve the factual disputes contained in the parties' account of events, and thereafter place on the record his factual findings and conclusions of law as required by N.J.S.A. 9:2-4(f) and Rule 1:7-4(a). As part of this hearing, the judge must comply with the requirements of Rule 5:8-6 by either interviewing the parties' now sixteen-year-old son concerning the custody and parenting time issues raised by his parents, or otherwise place on the record the reasons for his decision not to interview this child. In reaching this decision, the judge must consider the factors outlined in N.J.S.A. 9:2-4(c), including " the preference of the child," given his age and capacity to reason.
We discern the following facts from the record developed before the Family Part.
The parties had a dating relationship from 1996 to 2000. Their son " Jeremy" (a fictitious name to protect his privacy) was born in [438 N.J.Super. 434] December 1998. Represented by separate counsel, the parties agreed to mediate the legal issues concerning their son and entered into a Consent Order for Joint Custody and Parenting Time dated April 26, 2002. This Consent Order comprehensively addressed and resolved all of the issues generally associated with the rearing of the parties' then three-year-old son, including agreeing that the child would reside with plaintiff (mother), while giving defendant (father) " reasonable and liberal parenting time with the child." The Consent Order included a detailed description of the terms governing defendant's parenting time with his son.
Neither party sought judicial intervention to modify the terms of this Consent Order until defendant filed a motion on November 7, 2012, " requesting changes in the custody/parenting time terms of the [consent] order to reflect the current practice and agreement." Defendant claimed plaintiff had voluntarily agreed to this modification permitting Jeremy to reside with him because her relationship with her then thirteen-year-old son had deteriorated and become too difficult to handle, given the demands of time and effort associated
with her then recent employment as a police officer.
Defendant attached to the notice of motion an " information sheet" dated October 28, 2012, setting forth the basis for his request that the court recognize and approve what he claimed was a de facto, mutually agreed upon voluntary modification of the custodial arrangement established in the 2002 Consent Order. The following account of events is based upon the allegations defendant made in support of this motion. Specifically, defendant claimed that since the Consent Order " was issued almost ten years ago, the [p]laintiff and I have on many occasions informally modified the custody and parenting time terms of the Court Order to better align with [Jeremy]'s needs and best interest." Although he recognized that his son had been academically successful during the time he had resided with his mother, defendant [438 N.J.Super. 435] claimed the child had also experienced " intermittent disciplinary and behavioral issues . . . ."
These issues became more acute as the boy reached his teenage years. Defendant attributes his son's behavioral problems, at least in part, to plaintiff's " parenting style," which defendant characterizes as " ill-suited and ineffective in addressing" Jeremy's disciplinary problems. Defendant alleges he " regularly got phone calls" from both plaintiff and Jeremy " expressing frustration and anger, or complaints about the other."
The relationship between Jeremy and his mother continued to deteriorate during the boy's pre-teen years. Eventually plaintiff told defendant that " she thought it would be better if [Jeremy] lived with [him] permanently." Defendant claimed that during the summer of 2012, when Jeremy was thirteen years old, he and plaintiff " reached [an] agreement that [he] would take primary custody of [Jeremy], to begin 'officially' when school started in September ." They agreed upon a parenting time schedule that permitted Jeremy to meet with his mother on Wednesdays " after school" and stay with her overnight on " alternate weekends." Defendant represented to the court that this arrangement " has been in effect at least since September ."
With respect to child support, defendant claimed plaintiff agreed to file a motion to modify the Consent Order " to reflect this understanding in December 2012 when she graduated from police academy training. In the meantime, [p]laintiff agreed that she would reimburse me in the amount of the child support payments I made pending the modification." According to defendant, he decided to file the motion seeking judicial recognition of this oral agreement because plaintiff told him " she did not have time [to do it herself] because she was too busy due to her police academy obligations." 
[438 N.J.Super. 436] Plaintiff submitted her own certification disputing all of the material allegations defendant made in support of his motion. As a starting point, plaintiff emphasized defendant " has a law degree from Harvard and a MBA [Master's Degree in Business Administration] from the University of Pennsylvania." She described defendant's conduct during their initial attempts in 2002 at resolving the custody and parenting time issues as confrontational and less than completely candid and
forthright on defendant's part. She was nevertheless thankful that they were able to reach an agreement that lasted for eleven years " except for very brief periods of time."
Plaintiff cited the summer of 2012 when she began her academy training to become a police officer as an example of one of the " brief" departures from the custodial arrangement reflected in the 2002 Consent Order. Because the time demands imposed on her by this training coincided with defendant being unemployed, plaintiff " thought it would be a fine opportunity for 'father and son' to spend more time together." She insisted, however, that this was a temporary custodial arrangement intended to end when she graduated from the police academy on December 14, 2012. Because the exigency that necessitated this custodial arrangement had ended, plaintiff claimed it was in her son's best interest to return to her home.
With respect to her son's welfare, plaintiff alleges Jeremy " is exposed to violence at [defendant's] home and that his needs are being neglected." Her concern over her son's safety emanates from defendant's wife. Plaintiff characterizes defendant's relationship with his wife as " quite violent." She claims three domestic violence restraining orders have been filed between defendant and his wife, " believes" each has filed municipal court charges against the other, and claims " the police have been called to the [438 N.J.Super. 437] home on multiple occasions." She thus fears that Jeremy is " often put in the middle" of defendant's violent and dysfunctional relationship with his wife.
By way of proof, plaintiff presented to the trial court (and included in the appellate record) three emails allegedly sent by Jeremy on the morning of April 11, 2012. The first email, sent at 9:22 a.m., states: " MOM CALL THE POLICE SEND THEM TO MY DADS [sic] HOUSE [naming defendant's wife] HAS A KNIFE PLEASE CALL PLEASE CALL THE POLICE AND SENT THEM TO [defendant's home address]! PLEASE PELASE [sic]
PLEASE [sic]." The second email, sent at 9:23 a.m., states: " CALL THE POLICE AND SENT IT TO MY DADS [sic] HOUSE PLEASE PLEASE [sic] PLEASE." The third and final email, sent at 9:24 a.m., states: " SEND THEM TO MY DADS [sic] HOUSE SEND THEM TO MY DADS [sic] HOUSE."
Plaintiff claims she was shopping one block away from defendant's residence when she received the first email, and " rushed over." When she arrived at defendant's apartment, she " had to knock on the door really hard and had to yell out for him." When she finally gained access to the apartment, her son told her
that he locked himself in his room when he saw the knife. As we were leaving, I saw [defendant] outside the building with his daughter [identifies her by name]. I asked him what happened. He simply said that " [his wife] was having a hormonal moment and left the house."
Plaintiff characterizes defendant's response to the violence between him and his wife as " unacceptable." As a result, she " did not allow [Jeremy to go his father's home] for the next 3 weeks." Plaintiff also claims that at some unspecified time defendant and his wife were involved " in a court battle for their [six-year] old daughter." It is plaintiff's " understanding" that defendant's wife " lost the case because of her violent tendencies and her drug use." Plaintiff alleges defendant and his wife " have since reconciled and live together." Plaintiff concluded this aspect of her certification by describing defendant's home as " an unstable, violent place for our son. A custody transfer to [defendant] would not be in [Jeremy's] best interest whatsoever."
[438 N.J.Super. 438] Despite making these highly inflammatory allegations against defendant and his wife, plaintiff conceded that she " modified" the custodial arrangement at the start of Jeremy's freshman year of high school for " approximately two months." She claims, however, that the custodial arrangement defendant described in his statement ended when defendant's wife " started having problems with our son." Specifically, plaintiff claims defendant's wife called her to complain about having to drive Jeremy around because he " wasn't her child or her responsibility." Instead of immediately terminating the arrangement, plaintiff claims she told defendant's wife " to discuss the matter with [defendant]. After all, [Jeremy] was his responsibility as well."
Plaintiff describes her personal life as nonviolent and happy. She has a stable relationship with " another police officer." She claims her " 'significant other' loves [Jeremy] and [Jeremy] loves him." She does not have a criminal record and " look[s] forward to a long career with [the] [p]olice [d]epartment." Finally, because she does not have any other children, she can focus her attention on Jeremy.
Defendant filed a reply certification noting that he had not made any inflammatory allegations against plaintiff in support of his motion, and then lamenting the ad hominem attacks plaintiff had made against him and his wife. Defendant addressed and refuted the many instances of impropriety alleged by plaintiff. He also emphasized that plaintiff had not objected to his regular overnight contacts with his son since 2010.
Despite defendant's alleged intent to remain above the fray and take the moral high ground in this dispute, his reply certification is replete with disparaging allegations of plaintiff's confrontational parenting style, including resorting to striking Jeremy " repeatedly with a broomstick" and threatening him " with a baseball bat." We pause here to note the same seeming contradictions in defendant's position we noted when we reviewed plaintiff's certification. That is, despite these highly disturbing accusations and concerns [438 N.J.Super. 439] about plaintiff's parenting style, defendant allowed his young son to reside with his allegedly violent mother for over ten years.
The First Hearing
Both sides were represented by counsel at the time defendant's motion to modify the 2002 Consent Order came before the Family Part on December 21, 2012. Unfortunately, the attorneys' demeanor and arguments echoed the vitriolic tone reflected in the warring certifications submitted by their respective clients. We are compelled to note at this time the informality with which the trial judge conducted this motion hearing. Although the parties were technically " sworn" by a Sheriff's Officer at the start, the environment created by the informal, conversational style of the proceeding was more akin to a mediation session than an adjudicative hearing. This had the unintended, yet unfortunate effect of yielding more heat than light, ultimately leaving unresolved the central issues raised by the parties.
The judge interacted with the parties on the record in a highly informal manner, asking questions and receiving material and conflicting factual assertions in response from both the parties and their respective counsel. Despite these conflicting material accounts involving key events, the judge seemed at times to accept or reject these proffers and representations without having the benefit of a factual record developed through a traditional evidentiary hearing.
Through this freewheeling colloquy, plaintiff conceded that Jeremy had been residing with defendant since she entered the police academy at the start of the summer of 2012. In fact, when the judge asked plaintiff whether " as a practical matter," Jeremy resided with his father " right now," plaintiff answered: " Right now he's staying there, yes."
However, defendant asserted (without being subjected to cross-examination) that by mutual agreement with plaintiff, Jeremy had [438 N.J.Super. 440] been residing with him since he graduated eighth grade in 2010. The judge addressed defendant directly to ensure he understood his position:
THE COURT: Okay. So your position is since 2010 [Jeremy] has been -- when you say staying with you what do you mean by that?
. . . .
DEFENDANT: Yes, Your Honor. I mean Monday through Friday with an understanding that he would -- she -- he would be over with her on the weekends. And -- and actually quite frequently during those weekends because of the confrontations that they would have he would actually call me to have him -- pick him up . . . . So actually he would end up spending more than that.
Defendant's counsel asked the judge " to put the same question to [plaintiff.]" In response, the judge asked plaintiff: " What do you have to say?" After some equivocation, plaintiff denied defendant's account and offered to produce her parents and other friends as witnesses to support her position. In the midst of this freewheeling exchange, the judge made the following comment:
THE COURT: We can -- and we can have [Jeremy] come in here too, but I really don't want to do that.
DEFENDANT'S COUNSEL: Right.
THE COURT: All right. Let me make that clear. But don't -- let's -- let's hope it doesn't come to that now, all right.
Despite the parties' intransigence and conflicting positions, the motion judge continued to press for some form of mediated solution. Showing his frustration, the judge addressed the parties directly and asked: " Why do I have to make a decision for the two of you about where your son should stay?" The record shows that fourteen transcript pages of argument and colloquy transpired thereafter. The judge never received a direct answer to his poignant, yet seemingly rhetorical question. At that point, the judge addressed the parties once again with these final words:
All right. I'm going to say something -- now, I'm going to say something. [Addressing plaintiff] Let's stop talking about [defendant's wife] too, all right, if you don't mind. I know you don't mind.
[438 N.J.Super. 441] I -- I think, look, I'm -- I'm trying to resolve it, I want to resolve it. It doesn't make sense for the both of you to keep coming back here.
The both of you are working. The both of you are intelligent people. Now, come on. Now, the court order that was in effect which has not been amended since 2002, correct?
. . . .
All right. Then that's what I am inclined to continue in effect. Now, the question becomes what are we going to do to effect liberal parenting time. And when I say liberal I don't mean necessarily every other weekend, and I don't
know if there's some other way we can effectuate long weekends or what. I don't know, and I'm not going to go through here trying to work out a parenting schedule, all right.
Now, you can either go to mediation, you can go today if we can arrange it, or the two of you, or all four of you can go into my conference room, sit down, and come up with a parenting schedule where [defendant] gets liberal parenting time.
. . . .
We can do that . . . We can send the parties to mediation and see what develops. I'd like to think, as I said, and I'm not saying this -- and I don't say this to everyone who appears in front of me, you're two very intelligent people. Take a step back for a moment and try to work this out. Yes or no? Are going to try to do something since we have the parties here?
As an accommodation to the attorneys' schedule, and in light of the pending holiday recess, the court scheduled the matter to return for mediation on Thursday, January 10, 2013.
The Second Hearing
When the parties returned on January 10, 2013, nothing substantive had changed. The parties remained barricaded behind their intransigent, materially-conflicting positions. Plaintiff's counsel apprised the judge that " because there has been no specific parenting plan [defendant] has taken it upon himself to keep the child and take the child sometimes more often than not thereby basically ignoring Your Honor's court order and thereby depriving my client of residential custody." Defense counsel responded by asserting that the parties were
at an impasse in terms of residential custody. There's this kind of amorphous liberal parenting time plan where the 14-year old who wants to stay at his father's house, has demanded to stay at his father's house, has been staying at his [438 N.J.Super. 442] father's house during the week and there has been ongoing conflict between the child and his mother. There's no violation of the court's order.
What we have is a 14-year old who is as big as [his father] who goes to school, who's successful in school, who wants to stay with his father. We have two parents. We have a mother who is demanding that the child stay at the house during the week when she's at work at -- at last report until eight o'clock at night and [defendant] has taken on the responsibility of being the custodial parent.
The proceedings continued to be conducted from this point on in the same informal manner that characterized the December 21, 2012 hearing. The attorneys continued to make conflicting factual representations to the judge without any competent evidence to support them. Plaintiff's counsel pressed the judge to reaffirm his prior ruling and order, and reaffirm plaintiff's role as the residential custodial parent. As the following passage indicates, however, in making this argument plaintiff's counsel implicitly conceded defense counsel's claim that the child was, as a matter of fact, residing on a fulltime basis with his father:
PLAINTIFF'S COUNSEL: Your Honor's order needs to be enforced. This 14-year-old child is being a 14-year-old child. He's being rebellious. He doesn't like the discipline that my client has at her home. At [defendant]'s home he ...