R.G. v. M.Y. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2771-22
R.G.,1
Plaintiff-Respondent,
v.
M.Y.,
Defendant-Appellant.
_______________________
Argued September 12, 2024 – Decided October 10, 2024
Before Judges Berdote Byrne and Jacobs.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FD-12-1157-17.
Stephanie Palo argued the cause for appellant (Buchan,
Palo & Cardamone, LLC, attorneys; Stephanie Palo, on
the briefs).
Christian R. Oehm argued the cause for respondent
(Lindgren, Lindgren, Oehm & You, LLP, attorneys;
Christian R. Oehm, on the brief).
1
We use initials for the parties and a fictitious name for the minor child to
protect their privacy interests. R. 1:38-3(d).
PER CURIAM
Defendant-father appeals a February 8, 2023 order denying his motion to
modify parenting time and appoint a guardian ad litem ("GAL"), and an April
24, 2023 order denying his motion for reconsideration. The Family Part found
defendant failed to establish a prima facie basis to modify parenting time and
denied defendant a plenary hearing on the issue. It also declined to appoint a
GAL. We disagree and conclude defendant presented sufficient evidence to
establish a prima facie case entitling him to a review of the current parenting
time plan. We remand the matter to the Family Part for further review,
consistent with this opinion.
I.
Plaintiff and defendant had a limited dating relationship prior to plaintiff
giving birth to their only shared child, "Molly," who was born in November of
2016. The parties stopped communicating after plaintiff informed defendant she
was pregnant. On May 15, 2017, the Pennsylvania Court of Common Pleas
entered an order for child support. At the time, defendant lived in Pennsylvania
and Molly resided with her mother in New Jersey. On January 10, 2018, the
parties entered into a consent order regarding custody and parenting time.
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In the order, defendant agreed to a gradual expansion of his parenting
time, eventually allowing him to have alternating weekend parenting time from
Friday at 6:30 p.m. to Monday at 8:00 a.m., a week-day dinner every Wednesday
from 6:30 to 8:30 pm, and a week-day dinner every-other Tuesday from 6:30 to
8:30 pm. The order also stated: "[i]n the event either party needs to travel for
work or personal travel, the parties will be flexible in rescheduling parenting
time." When the consent order was executed, Molly was fourteen months old,
and defendant worked full time at his job in Pennsylvania while residing in
Wyncote, Pennsylvania, approximately one hour from where Molly resided with
plaintiff.
On September 11, 2018, the parties entered into another consent order
pertaining primarily to vacation time, holidays, and Molly's religious
upbringing. Six months after the parties entered into that consent order,
defendant moved to East Brunswick, New Jersey. He took no further legal
action for three years.
On September 3, 2021, defendant filed an order to show cause ("OTSC")
certifying Molly "was harmed as a result of [p]laintiff's father sexually abusing"
her. The court denied the OTSC without prejudice because "the Division of
Child Protection and Permanency [("DCP&P")] and the Middlesex County
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Prosecutor's Office [were] involved," and their investigation was "still pending."
The judge stated the OTSC was denied "until the conclusion of [the]
investigation or further order of the [c]ourt." DCP&P thereafter determined
there was "[n]o immediate or imminent threat or danger to the minor child," and
reported there would be "[no] formal proceeding in the [c]ourt or otherwise
because . . . [DCP&P] ha[d] no reason or basis to commence such a proceeding."
On September 27, 2022, defendant moved for modification of his
parenting time, appointment of a GAL for Molly, disclosure of the DCP&P file,
and other related relief. Defendant certified he was "seeking a change of custody
to [fifty-fifty] shared custody, or in the alternative, . . . an increase in overnight
parenting time" with Molly. Defendant also certified he was living in Wyncote,
Pennsylvania at the time the 2018 consent order was entered into, but
subsequently moved to East Brunswick, New Jersey "specifically to be closer to
[his] daughter," and now lives "less than ten minutes away." Further, defendant
stated he now works from home and is no longer required on a daily basis to
drive to his office in Pennsylvania. Finally, he certified he was now married
and wanted Molly "to spend more time with [his] wife and [Molly's] stepsister."
Defendant stated plaintiff "refused to allow [him] additional time with [Molly]
even though [he] live[d] so close to her now" and "insist[ed] on strict compliance
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with the [c]onsent [o]rder." Plaintiff filed opposition and a cross-motion
requesting the trial court award her attorneys' fees and costs. After oral
argument on the motions, the trial court denied the motion to modify parenting
time. Although it noted the parties "should be trying to come to some middle
ground" regarding parenting time, it nonetheless denied defendant's request for
modification because "defendant failed to provide proof as to a change of
circumstances to merit a change."
Defendant moved to reconsider, which plaintiff also opposed. He asserted
the trial court's decision contained "palpably incorrect reasoning" because the
"circumstances combined in their totality" were sufficient to establish a prima
facie showing of change of circumstances. Defendant argued "[w]hen the
custody and parenting time plan was coordinated by the parties[,] . . . th[e
parties'] child was only between one and two years old" and the fact that Molly
was now six years old supported a finding of changed circumstances. Defendant
reiterated he now lived much closer to Molly, but the trial court "d[id not] see
how that [was] a changed circumstance."
The judge stated:
I'm trying to figure out . . . what the real rub is here.
[Defendant is] saying [he is] available, [and he] want[s]
to spend more time with the child. Obviously[,] he's
got to get over the threshold of changed circumstances.
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But aside from all of that, why not some willingness to
meet him halfway[?]
The trial court stated it was "somewhat persuaded, but it doesn't carry the
day, . . . that [defendant] is available for more [parenting] time" because
defendant's increased availability for Molly was "not a changed circumstance."
It then stated: "I don't necessarily see that it's in the best interest of the child [to
spend more time with defendant] at this point because the undercurrent . . .
appears as though the parties really don't get along." It then denied the motion
for reconsideration. This appeal followed.
II.
Our review of "a trial court's findings in a custody dispute is limited."
W.M. v. D.G., 467 N.J. Super. 216, 229 (App. Div. 2021). We extend significant
deference to the Family Part's discretionary decisions, provided those decisions
are supported by adequate, substantial, and credible evidence in the record. D.A.
v. R.C., 438 N.J. Super. 431, 451 (App. Div. 2014). "A proper exercise of
judicial discretionary authority 'connotes conscientious judgment, not arbitrary
action; it takes into account the law and the particular circumstances of the case
before the court.'" Ibid. (quoting Higgins v. Polk, 14 N.J. 490, 493 (1954)).
Unlike factual findings, issues of law are subject to de novo review. W.M., 467
N.J. Super. at 229.
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When two parents cannot agree on issues affecting their child, the court
must act in the best interest of the child in making determinations regarding
custody and parenting time. See N.J.S.A. 9:2-4. The Family Part, acting as
parens patriae, is empowered to act in the best interest of the child. Parish v.
Parish, 412 N.J. Super. 39, 52-53 (App. Div. 2010). Indeed, the child's best
interest is "[t]he touchstone for all custody [and parenting time] determinations
. . . ." J.G. v. J.H., 457 N.J. Super. 365, 374-75 (App. Div. 2019) (quoting
Faucett v. Vasquez, 411 N.J. Super. 108, 118 (App. Div. 2009)). This best
interest standard "protects the 'safety, happiness, physical, mental[,] and moral
welfare of the child.'" Beck v. Beck, 86 N.J. 480, 497 (1981) (quoting Fantony
v. Fantony, 21 N.J. 525, 536 (1956)). In contested cases, the court "must
reference the pertinent statutory criteria with some specificity," Kinsella v.
Kinsella, 150 N.J. 276, 317 (1997) (quoting Terry v. Terry, 270 N.J. Super. 105,
119 (App. Div. 1994)), and "specifically place on the record the factors which
justify" the arrangement, N.J.S.A. 9:2-4(f).
N.J.S.A. 9:2-4 requires family courts consider a non-exhaustive list of
factors when making an initial award of custody and parenting time, including:
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
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substantiated abuse; the interactions 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.
Defendant asserts six events require a finding of substantial change in
circumstances and a modification of parenting time: (1) Molly's age, because
Molly is now six years old and attending school and the consent order was
entered into when she was fourteen months old; (2) "[d]efendant no longer lives
in Pennsylvania and now lives in the same town as plaintiff[,] just [five] minutes
from [Molly's] school;" (3) defendant no longer commutes to work and works
from home full-time; (4) "[d]efendant [is] married and has a like-aged step
daughter"; (5) "plaintiff has begun to withhold additional parenting time from
defendant"; and (6) "[Molly] has raised serious issues regarding her well[-]being
and care while being cared for [by] plaintiff and [Molly]'s maternal grandfather."
Defendant's change in geographic proximity to Molly, coupled with her
maturation and entry into school, established the requisite prima facie case and
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entitled defendant to a review of the parenting time plan to determine what is in
Molly's best interest.
A. The Prima Facie Case.
"A party seeking to modify custody [or parenting time] must demonstrate
changed circumstances that affect the welfare of the [child]." Hand v. Hand,
391 N.J. Super. 102, 105 (App. Div. 2007). "Where there is already a judgment
or agreement affecting custody in place, it is presumed it 'embodies a best
interest[] determination' and should be modified only where there is a 'showing
[of] changed circumstances which would affect the welfare of the [child].'" A.J.
v. R.J., 461 N.J. Super. 173, 182 (App. Div. 2019) (quoting Todd v. Sheridan,
268 N.J. Super. 387, 398 (App. Div. 1993)). "Specifically, with respect to
agreements between parents regarding custody or parenting time, '[a] party
seeking modification . . . must meet the burden of showing changed
circumstances and that the agreement is now not in the best interests of a child.'"
Slawinski v. Nicholas, 448 N.J. Super. 25, 33 (App. Div. 2016) (quoting
Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div. 2003)).
Here, although an initial custody and parenting time determination has
never been performed by a court because all previous orders were entered into
by consent, the parties did agree to the current parenting time schedule and
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defendant bore the initial burden of demonstrating a prima facie case of changed
circumstances that potentially benefitted Molly.
The prima facie demonstration is not particularly onerous. See, e.g.,
Cardali v. Cardali, 255 N.J. 85, 108-09 (2023) ("As our case law recognizes, the
prima facie showing is distinct from the final proofs that are the basis for an
adjudication on the merits; it is simply a threshold showing. . . .").
It is expected a child's best interest changes over time. That is one of the
reasons custody and parenting time orders are always reviewable and
modifiable, see R. 5:8-6; Hoy v. Willis, 165 N.J. Super. 265, 275-76 (App. Div.
1978) ("Orders respecting custody and visitation are subject to modification at
any time upon a showing of a material change in circumstances.") (citing
Mimkon v. Ford, 66 N.J. 426, 438 (1975)), until a child reaches the age of
eighteen, R. 9:2-13(b). Molly's maturation and entry into school, which affected
her availability for parenting time with both parents, and defendant's ability to
see her more often because he moved closer to her, established the requisite
prima facie case of changed circumstances warranting review.
B. Whether a Plenary Hearing was Necessary.
Once a prima facie case of changed circumstances that may affect the best
interest of the child has been demonstrated, the court must determine what is in
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the child's current best interest, without relying on any previous court orders or
agreements between the parties. The Family Part erred in denying defendant a
best interest evaluation or a plenary hearing to assess the parties' contrary
positions regarding parenting time. Specifically, the court failed to consider the
change in the geographical distance between the parties that had occurred since
the consent order was entered. It did not delve into any of the statutory factors
to determine whether an alternate arrangement would be in Molly's best interest,
including a failure to consider her new school schedule as potentially impacting
parenting time. Instead, the court sent the parties to mediation. When that
failed, it simply chose to keep the current parenting schedule in place based on
the parties not getting along -- a common situation for litigating co-parents –
and did not determine what was in Molly's best interest.
To be sure, a plenary hearing is not automatic upon a showing of changed
circumstances, but a "thorough" one is required when mediation fails to resolve
the custody or parenting time dispute, and materially conflicting factual
allegations remain. J.G., 457 N.J. Super. at 372. Indeed, "the matter of
[parenting time] is so important, especially during the formative years of a child,
that if a plenary hearing will better enable a court to fashion a plan of [parenting
time] more commensurate with a child's welfare . . . it should require it." Id. at
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373. (third alteration in original) (footnote omitted) (quoting K.A.F. v. D.L.M.,
437 N.J. Super. 123, 138 (App. Div. 2014)).
C. Whether the Trial Court Erred in Declining to Appoint a GAL.
Defendant also contends the trial court erred in declining to appoint a GAL
to assist in determining the child's best interest. We disagree.
The role of a GAL is "'to assist the court in its determination of the
incompetent's or minor's best interest.'" J.B. v. W.B., 215 N.J. 305, 332 (2013)
(quoting Adoption of a Child by E.T., 302 N.J. Super. 533, 539 (App. Div.
1997)). As the Supreme Court reiterated in J.B.,
not every application affecting an unemancipated child
requires appointment of a [GAL]. See R. 5:8B ("In all
cases in which custody or parenting time/visitation is
an issue, a [GAL] may be appointed . . . if the
circumstances warrant such an appointment.") The
decision to appoint a [GAL] is reposed in the discretion
of the trial judge, and rightly so because the decision is
informed by the experience the judge gains as the judge
sifts through a daily docket of contested matters.
[Id. at 333 (citing In re M.R., 135 N.J. 155, 179 (1994)).]
Here, defendant broadly asserts "[t]he conduct of . . . plaintiff, and the
negative impact that it . . . had on [Molly], justifie[d] the appointment of a
[GAL]" with few specifics. We conclude defendant failed to substantiate any
claim that Molly's health or safety was being threatened due to the current
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parenting time schedule. DCP&P found no evidence of abuse occurring at
plaintiff's household and declined to pursue further proceedings. Moreover,
defendant did not seek a change of custody, only an increase in parenting time.
The Family Part, at that juncture, did not need a GAL to determine what was in
Molly's best interest and did not abuse its discretion in failing to appoint one.
On remand, it remains within the Family Part's discretion as to whether a GAL
would assist the court.
Finally, we note, in failing to find defendant had established a prima facie
case warranting review of the parenting time schedule, the trial court relied upon
the circumstances that the parties entered a second consent order in September
2018 and defendant moved to New Jersey six months later but took no legal
action regarding his parenting time until September 2021, when he filed his
motion. In denying defendant relief, the Family Part stated the fact that
defendant moved to New Jersey almost three and a half years before filing an
application for modification of the September 2018 consent order in September
2022 was controlling. It is important to recognize the OTSC was brought due
to an allegation of abuse, not merely to modify parenting time. Regardless, there
is no support in the law for the proposition that a parent waives his right to seek
modification of parenting time by the mere passage of time. See Wilke v. Culp,
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196 N.J. Super. 487, 499-500 (App. Div. 1984) (concluding the plaintiff-father's
delay of approximately six years to formally appeal the suspension of parenting
time insignificant). Defendant's delay does not supply legal authority for denial
of a prima facie finding of a right to modify parenting time.
We vacate the orders appealed and remand for further proceedings
consistent with this opinion before a different judge. See Freedman v.
Freedman, 474 N.J. Super. 291, 308 (App. Div. 2023) (first citing J.L. v. J.F.,
317 N.J. Super. 418, 438 (App. Div. 1999); and then citing P.T. v. M.S., 325
N.J. Super. 193, 220-21 (App. Div. 1999)). We take no position regarding
whether or to what extent the current parenting plan should be modified. The
Family Part, in its discretion, may enter an interim order regarding parenting
time upon remand.
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
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