Opinion
DOCKET NO. A-1964-15T3
02-03-2017
T.F., Plaintiff-Appellant, v. T.M.L., Defendant-Respondent.
Lora B. Glick argued the cause for appellant (Lesley Renee Adams, of counsel; Ms. Glick, on the brief). Maria Isabel Velez argued the cause for respondent.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Lihotz and O'Connor. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FD-07-3086-10. Lora B. Glick argued the cause for appellant (Lesley Renee Adams, of counsel; Ms. Glick, on the brief). Maria Isabel Velez argued the cause for respondent. PER CURIAM
Plaintiff T.F. (mother) and defendant T.M.L. (father) are the parents of Jayden, presently age fourteen. The parties lived together until Jayden was ten years old. When the parties separated, Jayden resided with the mother and enjoyed liberal parenting time with the father.
We employ the use of initials for the parties, and a fictitious name for defendants' son, in order to protect their privacy.
Following the filing of an order to show cause in which the father alleged the mother was emotionally and physically abusing Jayden, the court awarded the father temporary physical custody of the child. Eight months later, on November 30, 2015, the court entered an order denying, without holding a plenary hearing, the mother's motion to return Jayden to her physical custody. The mother appeals from that order.
Following our review of the record and applicable legal principles, we reverse the November 30, 2015 order and remand this matter for a custody hearing.
I
In March 2015, Jayden informed his father that his mother had been physically and emotionally abusing him over a long period of time. The acts of abuse included, among other things, threatening to kill him and attempting to push him down the stairs. The father filed an order to show cause seeking temporary physical custody of Jayden. On the day the order to show cause was filed, both parties appeared in court and testified. The father revealed and the mother denied the child's allegations.
The mother appeared by telephone.
The court acknowledged the competing evidence; however, because there was an unresolved allegation the mother had injured the child, the court ordered the father to have temporary physical custody of Jayden until April 8, 2015, the return date of the order to show cause. The mother was not permitted any parenting time in the interim. The Division of Child Protection and Permanency (DCPP) was notified of the child's allegations.
On April 8, 2015, the parties appeared in court, with counsel. The court advised the DCPP had investigated the child's allegations and determined they were "unfounded." However, still concerned about the child's claims, the court interviewed the child that day. Jayden reported to the court his mother was often angry at him, and her temper had worsened after his adult half-brother moved out of their home the previous year. The more recent incidents Jayden reported were as follows.
"An allegation shall be 'unfounded' if there is not a preponderance of the evidence indicating that a child is an abused or neglected child as defined in N.J.S.A. 9:6-8.21, and the evidence indicates that a child was not harmed or placed at risk of harm." N.J.A.C. 10:129-7.3(c)(4).
Just a few weeks before the father filed his order to show cause, the mother became angry at Jayden because he asked the father instead of the mother to help him with a science project, and hit the child in the face with her fist or a phone (Jayden was unsure because he and the mother were in a car at night).
In January 2015, Jayden had forgotten to change his clothes following basketball practice. The mother became angry and told Jayden she hated him, that he was the worst child a parent could have, and asked he do her the favor of drinking a cup of bleach so he would die. Around this same time, there was another incident where Jayden had misplaced a key to the house. In response, the mother attempted to push him down a flight of stairs. The child was not injured because, after falling down one step, Jayden was able to recover and keep himself from falling further.
On one occasion in 2014, Jayden opened the front door part way and the wind caught and blew the door open further, causing damage. As a result, the mother locked the child out of the house for an hour and a half. The child also mentioned his mother becomes easily frustrated and impatient when she helps him with his homework and he is unable to follow her explanations and instructions. If he fails to comprehend a point she has made or if he makes a mistake, she tells him he is "retarded or fucked up."
Jayden mentioned he did have "fun" at times with his mother, but most of the time he spent with her was "bad." However, he did want to improve their relationship, and mentioned he had recently had a session with a therapist, which he found helpful.
At one point during the April 8, 2015 court appearance, the court suggested the mother have supervised parenting time, but the father testified the child was terrified of the mother and did not want to see her, and pressed she have only telephone parenting time. The court asked the mother for input on how to handle the situation. The mother replied she was not at that point advocating a "plenary hearing ASAP with a full trial," and informed the court she would submit to its best judgment. The court ordered the father to have temporary physical custody and the mother telephone parenting time, until further order. The parties were also ordered to undergo family counseling with the child's therapist.
In August 2015, the father filed a motion to compel the mother to pay child support and the mother filed a cross motion to regain physical custody of Jayden. On the return date, the court informed the parties it wanted input from the child's therapist about whether any parenting time with the mother was advisable before deciding the mother's motion. The court also wanted to interview Jayden.
The mother informed the court she attempted to see the child's therapist as ordered. However, the therapist advised she could not engage in counseling sessions with the mother because the therapist had a personal relationship with the father and was counseling Jayden. The mother did, however, commence counseling with another therapist.
The mother also reminded the court she had denied Jayden's allegations and even the DCPP determined his claims were unfounded. The mother acknowledged the court wished to err on the side of caution given the child's accusations, but requested a custody hearing so the child's contentions could be properly tested and evaluated. The court decided to adjourn the mother's motion to enable Jayden's therapist to provide a report and to schedule the court's interview of the child.
On November 30, 2015, the parties appeared in and the court interviewed Jayden. The child reported he "loved" living with his father and did not want to return to his mother's home or even speak to her. The child's therapist provided a report in which she opined the mother could have supervised parenting time, as long as the mother followed the therapist's "recommendations;" the record does not reveal what those recommendations were.
The court denied the mother's motion for physical custody, but found it unnecessary for her to have supervised parenting time. Among other things, the court ordered the mother to have unsupervised parenting time every Sunday for four hours, which was to expand to eight hours in two months. After four months, the parties were to apply to the court to "change the parenting and custody arrangement." It is not known whether the mother applied to the court for relief, but we discern from her brief her parenting time with Jayden continues to be limited.
II
On appeal, the mother contends the court erred by failing to hold a custody hearing to determine whether there was any merit to the child's allegations. Second, she maintains the court erred by failing to consider the custody factors in N.J.S.A. 9:2-4(c), before denying her motion for custody, contending the court placed too much weight on the child's preference on where he wanted to live. She argues the failure to hold a hearing, followed by a consideration of all of the custody factors in N.J.S.A. 9:2-4(c), warrants reversal of the November 30, 2015 order.
The fourteen custody factors in N.J.S.A. 9:2-4(c) are:
[1] [T]he parents' ability to agree, communicate and cooperate in matters relating to the child; [2] the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; [3] the interaction and relationship of the child with its parents and siblings; [4] the history of domestic violence, if any; [5] the safety of the child and the safety of either parent from physical abuse by the other parent; [6] the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; [7] the needs of the child; [8] the stability of the home environment offered; [9] the quality and continuity of the child's education; [10] the fitness of the parents; [11] the geographical proximity of the parents' homes; [12] the extent and quality of the time spent with the child prior to or subsequent to the separation; [13] the parents' employment responsibilities; and [14] the age and number of the children.
A parent shall not be deemed unfit unless the parent's conduct has a substantial adverse effect on the child.
[Ibid.]
"A party seeking to modify custody must demonstrate changed circumstances that affect the welfare of the children." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (citing Borys v. Borys, 76 N.J. 103, 115-16 (1978)). If the party makes that showing then, "[a]bsent exigent circumstances, changes in custody should not be ordered without a full plenary hearing." Faucett v. Vasquez, 411 N.J. Super. 108, 119 (App. Div. 2009), certif. denied, 203 N.J. 435 (2010).
The need to hold a plenary hearing is particularly compelling where there are material factual disputes raised by the parties. See K.A.F. v. D.L.M., 437 N.J. Super. 123, 137 (App. Div. 2014) (noting when presented with conflicting factual averments on material issues, a court may not resolve those issues without a plenary hearing). Further, "a court may not make credibility determinations or resolve genuine factual issues based on conflicting affidavits." Id. at 137-38 (citing Conforti v. Guliadis, 245 N.J. Super. 561, 565-66 (App. Div. 1991), aff'd in part and modified in part on other grounds, 128 N.J. 318 (1992)). The failure to conduct a plenary hearing where there are genuine issues of fact in dispute requires reversal and remand for such a hearing. Id. at 138.
Here, the mother does not challenge the court's initial decision to temporarily transfer custody of Jayden to the father back in March 2015. She recognizes the court was confronted with conflicting information over whether she was harming the child and that the court proceeded prudently for the protection of the child. However, as time marched on, the mother then pressed for a hearing as there evolved a de facto, permanent change in custody based upon accusations she challenged and the DCPP determined were unfounded.
We agree the court should have granted the mother's request for a plenary hearing in light of the material issues of fact in dispute. Further, a hearing was required to be conducted as soon as practicable because a "temporary decision to change custody can take on a life of its own, creating a new status quo. Nominally temporary orders involving the custody of a child have a tendency to become permanent . . . ." Peregoy v. Peregoy, 358 N.J. Super. 179, 202-03 (App. Div. 2003).
Accordingly, we must vacate the November 30, 2015 order and remand this matter for a custody hearing. At the conclusion of the hearing, the court shall consider each of the factors in N.J.S.A. 9:2-4(c). See V.C. v. M.J.B., 163 N.J. 200, 227-89 (stating "[c]ustody and visitation issues . . . are to be determined on a best interests standard giving weight to the factors set forth in N.J.S.A. 9:2-4"), cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000). However, given the passage of time since the November 30, 2015 order, and because we wish to minimize disruption in Jayden's life, the father shall continue to be the designated primary caretaker pending the court's decision following the hearing.
Reversed and remanded for further proceedings consistent 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