Opinion
DOCKET NO. A-6115-09T1
08-17-2011
MARK BAKER, Plaintiff-Appellant, v. ILENE REILLY, Defendant.
Alan J. Cornblatt argued the cause for appellant. Pro se respondents Derek Gorski, Laura Gorski, and David W. Baker have not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges J. N. Harris and Fasciale.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FD-15-1074-07.
Alan J. Cornblatt argued the cause for appellant.
Pro se respondents Derek Gorski, Laura Gorski, and David W. Baker have not filed a brief. PER CURIAM
Plaintiff Mark Baker appeals from a July 12, 2010 order awarding Derek and Laura Gorski temporary legal and residential custody of his son, C.B., following the death of the child's mother. Baker contends that the motion judge deprived him of his fundamental right to care for his son and ignored the clear presumption in favor of the surviving biological parent in determining custody. We reverse and remand for a new hearing.
The Gorskis have not submitted a brief and desire to give up custody of C.B. to his paternal grandparents or to Baker, his father.
Baker, a soldier in the United States Army, became romantically involved with Ilene Reilly and their relationship resulted in the birth of C.B., on April 15, 2005. After their relationship ended in 2008, they entered into a consent support order on July 13, 2008. The order provided for child support and custody. It stated in pertinent part:
sole custody of [C.B.] . . . is vested with . . . Reilly. If for any reason Ms. Reilly cannot care for [C.B.,] custody will be vested with Derek . . . Gorski and Laura Gorski, the child's godparents. Custody will not go to Mark Baker[,] father.This order reflected an earlier agreement, which was signed by Baker and notarized on June 30, 2008. The earlier agreement provided for "full custody" of C.B. to Reilly and "should [she] become unable to care for him" he should "then go to his godparents." Baker, at all times, paid child support and voluntarily paid approximately $1600 per month in additional support.
Baker to have supervised parenting time . . . . Both parties to cooperate fully with any recommendations of DYFS.
During this same time period, Reilly alleged that Baker sexually abused C.B. Baker explained to the Division of Youth and Family Services (DYFS) that he was unaware of the charges and also denied the substance of the charges. He informed DYFS that the custody agreements were only temporary and that he was required, pursuant to military regulations, to make a custody arrangement for his son before he began his tour of duty in Iraq.
Baker returned from Iraq in February 2009 and began seeing his son and Reilly regularly. Reilly then passed away in May 2010. Derek Gorski, C.B.'s godfather, was given custody of the child pursuant to the agreement. Thereafter, Baker, Baker's father, Andrew, and Gorski all filed separate complaints for custody of the child.
At the hearing, the DYFS caseworker concluded that the complaints against Baker were unfounded and unsubstantiated. She stated "[DYFS] doesn't have a recommendation where the child should go[,]" yet DYFS planned therapy with C.B., a psychological evaluation for Baker, and gradual reunification because, despite the unfounded allegations, the child still believed that Baker had abused him.
The judge, however, was concerned about the letter and consent order Baker entered into, waiving his custody rights to his son. Baker explained that the letter was poorly written and merely reflected a temporary custody arrangement while he was deployed in Iraq, in accordance with military regulations. The judge, however, did not believe that the agreement was intended to be only temporary. The judge found the letter to be evidence of "potential unfitness," entered an order granting temporary custody to Gorski, and allowed Baker to reapply for custody once he completes a psychological evaluation. The order granted Baker supervised visitation rights and unsupervised visitation rights to the paternal grandparents.
On appeal Baker argues that he was (1) improperly deprived of his right to custody of his son, and (2) the judge ignored the clear presumption in favor of the surviving biological parent in determining custody.
We will uphold the factual findings supporting the trial court's decision if they are supported by "adequate, substantial and credible evidence." In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (internal quotation marks and citations omitted). "Additionally, as a general rule, we must grant deference to the trial court's credibility determinations." Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 279 (2007); see also Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). However, "'where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' the traditional scope of review is expanded." In re J.T., supra, 269 N.J. Super. at 188-89 (quoting Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)). We must ask ourselves whether the trial court's findings "'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting Snyder, supra, 233 N.J. Super. at 69); accord Pioneer Nat'l Title Ins. Co. v. Lucas, 155 N.J. Super. 332, 338 (App. Div.), aff'd, 78 N.J. 320 (1978).
The touchstone for all custody determinations has always been "the best interest[s] of the child." Kinsella v. Kinsella, 150 N.J. 276, 317, (1997). "Custody issues [between two fit parents] are resolved using a best interests analysis that gives weight to the factors set forth in N.J.S.A. 9:2-4(c)." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). The statute permits a judge to make any custody award that is in the best interests of the child after considering a variety of factors such as, "the parents' ability to agree, communicate and cooperate," "the safety of the child and the safety of either parent from physical abuse by the other parent," and "the fitness of the parent." N.J.S.A. 9:2-4(c). These factors must be analyzed because "[i]n any proceeding involving the custody of a minor child, the rights of both parties [are] equal[.]" N.J.S.A. 9:2-4.
However, "when the dispute is between a fit parent and a third party, only the fit parent is presumed to be entitled to custody." Watkins v. Nelson, 163 N.J. 235, 253 (2000). We recognize that "a legal parent has a fundamental right to the care, custody and nurturance of his or her child." V.C. v. M.J.B., 163 N.J. 200, 218, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000). It is the relationship between the person seeking custody and the child, therefore, that determines the standard to be used in awarding custody. Faucett v. Vasquez, 411 N.J. Super. 108, 122 (App. Div. 2009), certif. denied, dismissed as moot, 203 N.J. 435 (2010). See also Watkins, supra, 163 N.J. at 253. Thus, in the context of a fit parent and a third party, "the child's best interests become a factor only after the parental termination standard [or exceptional circumstances] has been met, rather than the determinative standard itself." Ibid.
Here, sufficient, credible evidence failed to establish that Baker was an unfit parent or that "exceptional circumstances" existed. The DYFS investigation concluded that the allegations against Baker were unfounded and
unsubstantiated. Further, Baker's presumption of fitness is not defeated by his supposed waiver of custody while he was stationed in Iraq. He explained that he was required to do so under military guidelines. Therefore, a best interests analysis was not required because Baker held a presumption of custody of his son as the surviving biological parent under the due process clause of the Fourteenth Amendment. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-559 (1972); V.C., supra, 163 N.J. at 218. Thus, we remand the matter for a new hearing and direct that the judge apply the presumption in favor of the natural father.
We deny Baker's request asking that we invoke our original jurisdiction pursuant to Rule 2:10-5 and determine the custody of Baker's son. The Family Part judge, using his special expertise, must determine the custody of Baker's son by making factual findings and by weighing and applying the evidence in a manner consistent with the ruling of this opinion. "[I]t is clear that resort thereto by the appellate court is ordinarily inappropriate where fact-finding or further fact-finding is necessary in order to resolve the matter." Pressler & Verniero, Current N.J. Court Rules, Comment R. 2:10-5, (2011) (citing Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 302 (App. Div. 2009)).
Reversed and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION