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J.G. v. J.H.

Superior Court of New Jersey, Appellate Division

January 2, 2019

J.G., Plaintiff-Appellant,
v.
J.H., Defendant-Respondent.

          Argued December 5, 2018

          On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FD-21-0329-14.

          Grace E. Kelly argued the cause for appellant (Legal Services of Northwest Jersey, attorneys; Grace E. Kelly, on the brief).

         Respondent has not filed a brief.

          Before Judges Koblitz, Ostrer and Mayer.

          KOBLITZ, P.J.A.D.

         Because the welfare of children is paramount whether the parents are married, divorced or never-married, we reverse and remand for a plenary hearing in this non-dissolution, FD, child custody matter. The mother, J.G. (Jane)[1]appeals from a custody and parenting time order entered after the judge denied discovery, denied Jane's lawyer the right to participate in the proceedings, did not afford cross-examination or an opportunity to call witnesses and decided the issues without fact-finding or a consideration of the statutory custody factors, N.J.S.A. 9:2-4(c).

         When J.H. (John) was born in 2012, his parents were not married. Jane is a school teacher and J.H. (Joseph) an aid for special needs students. In 2014, an FD order reflected the parents' consent to joint legal custody of their son, primary residential custody with Jane, and generous parenting time for Joseph. The following year, the consent order was vacated because the parents attempted to reconcile. John continued to reside primarily with Jane, and the parents agreed on a flexible shared-parenting-time schedule.

         The relationship between the parties eventually deteriorated, and Jane pursued a new relationship. She is now pregnant. Joseph alleges that on October 3, 2017, John was left alone with Jane's fiancé, who Joseph claims is a "well known drug user" and "convicted felon with multiple prison sentences."

         The next day, Joseph filed an order to show cause under the original FD docket number, seeking sole custody of John. As part of Joseph's emergent application, he alleged having received many reports of misbehavior by Jane and her fiancé, including drug usage and threatening behavior.

         The court denied Joseph's order to show cause because Joseph failed to demonstrate irreparable or "actual imminent threat of harm to [John]." The court stated it "cannot grant emergent custody based on . . . uncorroborated statements . . . limited evidence . . . and such speculative harm." Nonetheless, it awarded Joseph temporary sole physical custody of John pending resolution of the application because "[t]here appears to be potential for violence in [Jane]'s home, which could spill over and adversely affect a four-year-old child."[2] The order provided that Jane could arrange for parenting time "supervised by the maternal grandmother" at a location outside of Jane's home.

         Jane filed an order to show cause, alleging that John was suffering harm by his abrupt separation from her. The judge denied Jane's order to show cause as non-emergent, stating that "[w]hile [Jane] makes concerning certifications about [Joseph], she has not alleged with specificity any imminent harm."

          On October 24, 2017, Jane, her lawyer and Joseph appeared before another judge for the return on Joseph's initial order to show cause. The hearing judge placed both parties under oath and proceeded to go back and forth questioning them in an attempt to establish the facts. The parties contradicted each other about most of the important facts affecting John's welfare.

         Jane's counsel, when afforded an opportunity to speak, requested the matter be placed on the complex track, but was rebuffed:

[COUNSEL]: [I]n order for there to be a change of custody we would ask that this case be put on the complex track to ...

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