Opinion
DOCKET NO. A-1112-14T3
06-05-2015
SUZANNE M. SAIA, Plaintiff-Appellant/Cross-Respondent, v. MICHAEL ROBERGE, Defendant-Respondent/Cross-Appellant.
Gregory A. Pasler argued the cause for appellant/cross-respondent (Weinberger Law Group, attorneys; Mr. Pasler, on the briefs). Allison C. Williams argued the cause for respondent/cross-appellant (Williams Law Group, attorneys; Ms. Williams of counsel and on the brief; Victoria D. Miranda, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Koblitz and Currier. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FD-20-1733-14. Gregory A. Pasler argued the cause for appellant/cross-respondent (Weinberger Law Group, attorneys; Mr. Pasler, on the briefs). Allison C. Williams argued the cause for respondent/cross-appellant (Williams Law Group, attorneys; Ms. Williams of counsel and on the brief; Victoria D. Miranda, on the brief). PER CURIAM
Defendant appeals and plaintiff cross-appeals from an August 19, 2014 order granting the parties joint legal custody, plaintiff residential custody of their daughter, and defendant parenting time. Plaintiff cross-appeals on the matter of defendant's parenting time schedule. Defendant also sought to change the baby's surname from Saia to Roberge-Saia, a request not considered by the judge. We reverse and remand for a plenary hearing, as requested by both parties, and consideration of defendant's name change application.
Defendant lives in Connecticut and has two older children. He shares joint custody of these children with his former wife. Plaintiff lives in New Jersey. The parties, who were never married, separated before the baby was born in April 2014. Plaintiff filed a complaint a few days after she gave birth, seeking joint legal custody of her daughter, sole physical custody, child support and payment of medical expenses. Defendant filed a counterclaim seeking sole physical custody, child support, and to change the infant's last name.
When the parties were unable to resolve the matter through mediation, the parties and their counsel appeared before the judge. Following oral argument and without any sworn testimony, the judge rendered an oral decision. Although plaintiff was nursing the infant, the judge noted that there is no "mechanical presumption that either father or mother is entitled to custody of the child at a given age." The judge, however, found that it was "not necessary that there be a plenary [hearing] in this matter as to custody. The child has always been in the care and custody of the plaintiff since the child was born, although there is no court order to indicate the same." The judge then opined that defendant would have to demonstrate a "substantial change of circumstances" in order for there to be a transfer of custody. The judge found that defendant had produced no evidence of such a change.
The judge therefore kept the baby in plaintiff's residential custody. The judge stated that it was in the child's best interest for defendant to have parenting time, and acknowledged that it may be a benefit to the child for plaintiff to breastfeed. For that reason, the judge scheduled two weekends in which defendant would have parenting time with the baby in Connecticut, between 9:00 a.m. and 7:00 p.m. each day, but allotted one hour of that parenting time for plaintiff to breastfeed. After those two weekends, defendant was given parenting time in Connecticut every other weekend. Defendant was responsible for picking up the baby in New Jersey at the beginning of his parenting time, and plaintiff was responsible for picking the baby up in Connecticut at the end of the allotted period.
Although plaintiff agrees with the judge's decision regarding residential custody, and argues she is so obviously the appropriate primary residential parent that a hearing was unnecessary, she nevertheless agrees with defendant that a plenary hearing was necessary to determine parenting time.
The judge erred in considering the motion and cross-motion under a change-of-circumstances lens. The infant was less than one week old when the motion was filed. Both the motion and cross-motion sought an initial determination of custody and parenting time. The factors to consider when determining custody are set forth in N.J.S.A. 9:2-4(c), which states in pertinent part:
In making an award of custody, the court shall consider but not be limited to the following factors: the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child's education; the fitness of the parents; the geographical proximity of the parents' homes; the extent and quality of the time spent with the child prior to or
subsequent to the separation; the parents' employment responsibilities; and the age and number of the children.
The parties disputed many of the factual underpinnings for the findings necessary to determine these factors. Thus a plenary hearing was necessary. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (citation omitted).
N.J.S.A. 9:2-4(f) states that "[t]he court shall specifically place on the record the factors which justify any custody arrangement not agreed to by both parents." It is therefore a requirement that the court "must reference the pertinent statutory criteria with some specificity." Kinsella v. Kinsella, 150 N.J. 276, 317 (1997) (citation and internal quotation marks omitted). The judge neglected to reference the statutory criteria in his opinion. Nor did the judge provide the parties an opportunity to present testimony on the parenting time issue, although there were material facts in dispute.
Defendant argues that the judge also erred when he failed to consider defendant's request regarding the baby's surname. Where the parents dispute the naming of a child, even if they had previously agreed on the name, courts must determine what is in the best interests of the child. Emma v. Evans, 215 N.J. 197, 221-22 (2013) (citation omitted). The required analysis is fact-sensitive. Id. at 222. While there had been a strong presumption in favor of the surname given by the child's primary caregiver, Ronan v. Adely, 182 N.J. 103, 111-12 (2004), the Supreme Court has recently rejected that presumption. Emma, supra, 215 N.J. at 221-22.
Our Supreme Court has enumerated certain factors relevant to the analysis, including the following child-centric factors:
1. The length of time the child has used his or her given surname.
2. Identification of the child with a particular family unit.
3. Potential anxiety, embarrassment, or discomfort that may result from having a different surname from that of the custodial parent.
4. The child's preference if the child is mature enough to express a preference.
. . . .
5. Parental misconduct or neglect, such as failure to provide support or maintain contact with the child.
6. Degree of community respect, or lack thereof, associated with either paternal or maternal name.
7. Improper motivation on the part of the parent seeking the name change.
8. Whether the mother has changed or intends to change her name upon remarriage.
9. Whether the child has a strong relationship with any siblings with different names.
10. Whether the surname has important ties to family heritage or ethnic identity.The name change was not addressed by the trial court.
11. The effect of a name change on the relationship between the child and each parent.
[Id. at 223.]
We therefore remand this matter to the Family Part for a plenary hearing to resolve the issues of custody, parenting time and the last name of the child. We were informed at oral argument that the mother has relocated to a different county and filed a motion for a change of venue. For the convenience of the parties, we expect that the issue of venue will be resolved prior to the plenary hearing.
Reversed and remanded for a plenary hearing in conformance with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION