December 5, 2018
appeal from Superior Court of New Jersey, Chancery Division,
Family Part, Warren County, Docket No. FD-21-0329-14.
E. Kelly argued the cause for appellant (Legal Services of
Northwest Jersey, attorneys; Grace E. Kelly, on the brief).
has not filed a brief.
Judges Koblitz, Ostrer and Mayer.
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)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).
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.
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
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.
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." The order
provided that Jane could arrange for parenting time
"supervised by the maternal grandmother" at a
location outside of Jane's home.
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."
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
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 ...