W.A. Jr. v. S.T. ( 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NOT FOR PUBLICATION WITHOUT THE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-2363-22
W.A. JR.,
Plaintiff-Respondent,
v.
S.T.,
Defendant-Appellant.
_______________________
Submitted September 16, 2024 – Decided November 21, 2024
Before Judges Susswein and Perez Friscia.
On appeal from the Superior Court of New Jersey,
Union County, Chancery Division, Family Part, Docket
No. FD-20-0856-11.
A. Brown, Esq. LLC, attorneys for appellant (Adam
Clinton Brown, on the brief).
J. Saad Law Group LLC, attorney for respondent (Jason
S. Saad, on the brief).
PER CURIAM
This appeal arises from a custody dispute over the primary residence of
the parties' teenage son, J.T. 1 Defendant S.T. (J.T.'s mother) appeals a March 3,
2023 Family Part order denying reconsideration of the trial court's September 2,
2022 order granting plaintiff W.A. (J.T.'s father) primary residential custody.
J.T., who suffers from attention-deficit/hyperactivity disorder (ADHD), had
primarily resided with his mother since birth. She argues the trial court abused
its discretion by changing primary residential custody and asks us to vacate the
order and remand the case to a new judge. After carefully reviewing the record
in light of the parties' arguments and the governing legal principles, we conclude
defendant has not established the trial court abused its discretion. Accordingly,
we affirm.
I.
We discern the following procedural history and pertinent facts from the
record. On February 8, 2022, the parties appeared before the trial court on
plaintiff's motion to modify child support based on his new job. Plaintiff also
moved to be designated the parent of primary residence and to relocate J.T. from
defendant's residence in one town to plaintiff's home in another town.
1
We use initials to protect privacy. R. 1:38-3(d).
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2
On February 11, 2022, the trial court entered an order setting new child
support payments. The trial court further ordered defendant to provide
additional information about J.T.'s medical insurance and instructed both parties
to provide photographic evidence of their homes and to exchange school
comparisons from Niche. 2 The order expressly permitted defendant to "submit
anything she wishes . . . regarding reasons for why the child should remain in
her residential custody."
The trial court held a plenary hearing on August 30, 2022. We recount
the pertinent testimony as summarized in the trial court's findings set forth in its
written opinion.
Plaintiff testified he lives with his wife and stepdaughter. They share a
three-bedroom home. Plaintiff moved to his current residence because it has a
"better" school system, including afterschool programs, extracurricular
activities, special education programs, and summer camps. He represented that
"he could offer a superior upbringing for [J.T.], because he would provide
structure, a stable home would be able to expose the child to more sports, and
the child would go regularly to church on Sundays."
2
The Niche K-12 Compare Tool compares New Jersey schools based on
reviews, statistics, and ratings.
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3
Plaintiff expressed concern about the crowded living arrangements at
defendant's residence. He testified defendant "lacks financial and emotion[al]
stability because she has moved three times in the past three years." He
explained that if J.T. relocated to his home, J.T. would live in the upstairs attic
bedroom and potentially share it with his stepsister with a partition.
Alternatively, the stepsister will move downstairs into the secondary room.
Plaintiff acknowledged that he has an unpredictable schedule working at
the Port of Newark. He explained that his wife would be the main provider of
childcare for J.T. because she has flexible work hours as a dance studio owner.
He also testified his wife normally starts work at 4:30 p.m. and the dance studio
is less than a mile from their house.
Commenting on J.T.'s reading difficulties, plaintiff predicted that J.T.'s
grades would improve if he were relocated to the school district in plaintiff's
town. Plaintiff explained that he too suffers from ADHD and is a "visual
learner." He testified that because he can relate "to his son's affliction he would
be a better fit for his learning environment."
Plaintiff's wife testified she married plaintiff in November 2018, and she
is pregnant with their daughter due in late September 2022. 3 Her then-twelve-
3
The record does not provide updated information.
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4
year-old daughter was from a different relationship. She confirmed plaintiff's
testimony that her daughter could move downstairs if necessary.
Plaintiff's wife testified she gets along well with J.T. and has no issues
taking on the role of a parent of primary residence. She explained that "she
comes from a big family and enjoys working with children." Further, she stated
that J.T. has participated in her dance studio's summer programs and that he
enjoys them.
Defendant testified she works part-time at an engineering firm. She
typically works Monday through Friday 7:00 a.m. to 2:30 p.m. Since February
2022, defendant has also had an event planning business, with events primarily
on Fridays, Saturdays, and Sundays. She acknowledged that she has had five
jobs in five years.
In addition, defendant confirmed she has lived at her current residence
with her mother for approximately one year. Defendant denied that her mother's
friend, Bill or "Coach," lives with them. Before moving to her current residence,
she lived on another street in her current town for about two years. Before that,
she lived in another town for approximately three and a half years. Defendant
testified she left that town because J.T. was not doing well in that school system.
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Defendant acknowledged that J.T. does not have his own bedroom and
sleeps on a fold-out bed in the living room. She noted that J.T. occasionally
sleeps in his uncle's room which has bunk beds. Defendant admitted that J.T.
does not have privacy when he sleeps in the living room, especially if someone
uses the kitchen at night.
Defendant also stated that she does not have her own bed or bedroom. She
sleeps in the living room or shares the bedroom with her mother. When asked
why she is still living at her mother's home, defendant testified that "she had
tried to bid on homes but was outbid consistently," so she decided to invest the
money in her event planning company. She testified she planned to move out
next month but is unsure what town or area she is moving to. 4
J.T. attended middle school in defendant's town with a basic education
curriculum but has special education classes for reading. He has lived with
defendant since birth but spends four weeks each summer with plaintiff.
Defendant acknowledged that in November 2020, J.T. lived with plaintiff for
approximately one month because of behavioral concerns.5 Defendant asserted
4
We reiterate the record does not reflect any changed circumstances that
occurred following the plenary hearing.
5
Plaintiff claims J.T. lived with him for two to three months during this period.
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she "is better suited to love and care for" J.T., claiming she "has a special
relationship with the child and helps the child with his schoolwork."
Defendant disagreed with the ADHD and oppositional defiant disorder
diagnoses by Dr. Kavita Sinha, a doctor employed by the public school in
defendant's town. She believes those diagnoses are "primarily the result of input
from the schoolteachers" and are not valid. She acknowledged, however, that
Dr. Sinha has been involved in J.T.'s medical care and monitoring his needs
since the first grade.
Defendant discussed her compliance with Dr. Sinha's seven
recommendations. Defendant acknowledged she is not following
recommendations two, four, five, six, and seven, which recommended daily
vitamins, informational reading, and behavioral modification. She testified she
is following the first recommendation—"the educational placement as per the
child's study team." She claimed she also is following the third
recommendation—J.T. undergo medical testing. She admitted, however, that
J.T. had not undergone any blood tests.
She also testified regarding the recommendation that J.T. consult with a
private psychologist for proper behavioral management strategies. She stated
J.T. attended some psychological evaluations, but explained that she wanted J.T.
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to see psychologists that she and J.T. already knew, none of which were
available due to an insurance coverage issue.
During cross examination, defendant admitted she never received a denial
of coverage from her insurance company and in fact never called the insurance
company. She testified J.T.'s "low" and "low-average" school performance was
related to COVID-19 but did not explain his school performance issues before
the pandemic.
J.T.'s maternal grandmother testified that J.T. "is better off staying with
them because he does not deal well with change." She confirmed that defendant
sometimes sleeps with her and that J.T. sleeps in the living room on a fold -out
mattress.
On August 31, 2022, the day after the plenary hearing, the trial court
conducted an in-camera interview of J.T. Before the interview, the trial court
allowed the parties to submit questions.
The trial court found J.T. "knew the difference between a truth and a lie"
and "testified consistently" with defendant's testimony regarding his living
arrangements. The trial court found:
The minor appeared not to be concerned about the
living arrangements and apparently has adopted a
position that privacy while at his mother's home is not
a concern. Conversely, when asked about privacy at his
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father's home, he seemed to indicate that it was a
concern. The minor expressed discontent about the fact
that he had to share a bedroom with his step-sister.
Minor expressed concerns about boundaries within the
large bedroom in that sometimes the stepsister's
belonging[s] made it to his side. When offered multiple
alternatives to solutions to the privacy concern about
the bedroom he seemed extremely reluctant but later
conceded that perhaps a center divider would resolve
the issue.
J.T. testified his mother does not want to put him in special education
courses even though he feels at a disadvantage going to regular classes. He
studies with his mother, who often assigns him additional homework. J.T.
acknowledged that he has a hyperactivity issue and that karate is helpful to him
since it "gets his energy out." He added that "when he gets hyper, … his mother
gets hyper with him." J.T. indicated he enjoys being with his mother and
spending time with his uncle. He did not seek more parenting time with his
father.
On September 2, 2022, the trial court issued an order granting plaintiff
primary residential custody accompanied by a thirty-five-page written opinion.
On September 22, 2022, defendant filed a motion for reconsideration, arguing
the trial court erred by not addressing J.T.'s psychological needs, relying too
heavily on Dr. Sinha's report, ignoring J.T.'s preference to continue living with
her, and delegating the responsibility of raising J.T. to plaintiff's wife. She
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argued that it was not in J.T.'s best interest to share a room with "a maturing
twelve-year-old girl, who[J.T.] said he does not really know well." She asked
the trial court to vacate its September 2 order and allow her to "retain an expert
to opine" about J.T.'s health and schooling.
The trial court heard oral argument on defendant's reconsideration motion
on January 3, 2023. On March 3, 2023, the trial court issued a twenty-two-page
written opinion denying the motion. This appeal followed. Defendant raises
the following contentions for our consideration:
POINT I
The trial court abused its discretion in its analysis of the
best interest factors.
a. The trial court deprived the [r]espondent of due
process by placing too much weight [on]
recommendations in an Individualized Education
Plan ("IEP"), without specifying its purpose of
admission.
b. Because the trial court did not consider the totality
of probative competent evidence by concluding
child's preference was unduly influenced by
[r]espondent's statements, it abused its discretion in
making its finding.
c. Because the trial court incorrectly discounted the
[a]ppellant's efforts to obtain financial help and
avail herself of [r]espondent's insurance in
November, 2021, it abused its discretion in its
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finding [r]espondent demonstrated an inability to
meet the child's needs.
d. Because the trial court did not have sufficient facts
to show [a]ppellant's employment responsibilities
were not J.T. centered, and it ignored material facts
regarding [r]espondent's employment
responsibilities.
e. Because the trial court improperly formed an
opinion based on facts not in evidence, it unfairly
prejudiced the [a]ppellant, it showed bias, and it
abused its discretion by relying on "state foster care
requirements."
f. Because the trial court gave too much weight to the
idea of the "nuclear family" in [r]espondent's home,
it abused its discretion and showed bias toward
[a]ppellant's household.
POINT II
The trial court showed bias by improperly relying on
evidence that was never submitted at trial, and by
making inaccurate assumptions it saw fit to craft its
order related to alleged foster care requirements.
II.
We preface our analysis by acknowledging the legal principles governing
this appeal. We review a trial court's decision on whether to grant or deny a
motion for rehearing or reconsideration under Rule 4:49-2 (motion to alter or
amend a judgment order) for an abuse of discretion. Branch v. Cream-O-Land
Dairy, 244 N.J. 567, 582 (2021); see Kornbleuth v. Westover, 241 N.J. 289, 301
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(2020). As we recently reaffirmed, our "standard of review on a motion for
reconsideration is deferential." Castano v. Augustine, 475 N.J. Super. 71, 78
(App. Div. 2023). "Reconsideration is appropriate only in 'those cases which
fall into that narrow corridor in which either 1) the [c]ourt has expressed its
decision based upon a palpably incorrect or irrational basis, or 2) it is obvious
that the [c]ourt either did not consider, or failed to appreciate the significance
of probative, competent evidence . . . ." Ibid. (quoting Triffin v. SHS Grp.,
LLC, 466 N.J. Super. 460, 466 (App. Div. 2021)). Stated another way, "the
magnitude of the error cited must be a game-changer." Ibid. (quoting Palombi
v. Palombi, 414 N.J. Super. 274, 289 (App. Div. 2010)).
Appellate courts also defer to a trial court's findings of fact "when
supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154
N.J. 394, 411-12 (1998). We are especially deferential to fact-sensitive
determinations made by Family Part judges "[b]ecause of the family courts'
special jurisdiction and expertise in family matters." Id. at 413; see also Thieme
v. Aucoin-Thieme, 227 N.J. 269, 282-83 (2016).
Turning to substantive legal principles, it is well settled that in custody
cases, the primary consideration is the best interests of the child. Kinsella v.
Kinsella, 150 N.J. 276, 317 (1997). The court must focus on the "safety,
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happiness, physical, mental and moral welfare" of the child. Fantony v.
Fantony, 21 N.J. 525, 536 (1956); see P.T. v. M.S., 325 N.J. Super. 193, 215
(App. Div. 1999).
Custody issues are resolved using a "best interests" analysis that gives
weight to factors set forth in N.J.S.A. 9:2-4(c). V.C. v. M.J.B., 163 N.J. 200,
227-28 (2000). The statutorily-enumerated factors are:
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.
[N.J.S.A. 9:2-4(c).]
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III.
In the present matter, the trial court addressed all fourteen custody factors.
We highlight the trial court's findings with respect to the statutory factors most
pertinent to the issues raised on appeal.
Regarding factor three, interaction and relationship of the child with their
parents and siblings, the trial court recognized the "strong emotional attachment
between" defendant and J.T. J.T. "enjoys spending time with his mother despite
the fact that his housing environment is inadequate." Further, the trial court
found "it was apparent that many of [J.T.]'s responses were influenced by the
mother's perspective on the father." However, J.T. "welcomes his relationship
with his father . . . [and] the relationship between [J.T.] and his step sister is a
positive one."
As to factor six, preference of the child when of sufficient age and
capacity to reason to form an intelligent decision, the trial court stated:
Overall, this court believes that this minor lacked
the proper insight to determine the difference between
his lack of privacy in [defendant's] residence, as
compared to the lack of privacy allegedly at [plaintiff's]
residence . . .
This court got the impression that the minor may
have been significantly influenced by his mother,
particularly during the exchange pertaining to the father
allegedly blocking calls from the mother. Moreover,
the minor had a hard time conceding the issue of lack
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of privacy despite the fact that he sleeps in an[] open
living room area. This court believes that the child has
been accustomed to living [in] inadequate housing and
as such his preference to remain with his mother, shall
not be given any greater weight. This opinion is rooted
in the fact that the child has been living in these
conditions for a protracted period of time.
This court's opinion that [defendant's] home is
inadequate, it is partially based on the state's basic
foster care requirements, and believes that [defendant's]
home would not be adequate under said standards, since
[] the child does not have his own room, bed, and a
sense of belonging, in terms of having a sanctuary
within [defendant's] residence. Moreover, the [dining]
area has been converted into an office. This is in stark
contrast to [plaintiff's] home, in which the minor was
allowed to select the color of his side of his room,
which runs the length of the entire home.
Regarding factor seven, needs of the child, the trial court noted defendant
"was in denial as it relates to" J.T.'s ADHD diagnosis. Defendant's testimony
that she believed Dr. Sinha's seven recommendations were "merely based off of
incorrect teacher input demonstrates a lack of insight and[/]or unwillingness to
meet [J.T.]'s needs."
As to factor eight, stability of home environment offered, the trial court
found plaintiff "offers a more stable home environment." It explained:
The father owns a home, his [wife runs a]
business about a mile away, and they enjoy a nuclear
family. Moreover, father[']s wife is due to give birth in
a couple of weeks. This court believes that the father's
nuclear family and home environment offers [J.T. an]
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increased stability as compared to the mother[']s home
environment, which can best be described as cluttered,
unstable, and [unpredictable].
As to factor nine, quality and continuity of the child's education, the trial
court found:
This court is troubled by [defendant]'s lack of insight
and inability and[/]or unwillingness to gain such an
insight regarding her child['s] diagnosis. This court
believes [that if J.T. is] left in the care and custody of
defendant mother, [that] said arrangement will continue
to have an adverse effect on the child's educational
needs. The continuity of the child's education currently
is simply not meeting the child['s] needs and this court
does not believe that [defendant] has an interest in
changing the current arrangement.
IV.
Defendant contends the trial court deprived her of due process by not
affording her the opportunity to submit a psychological evaluation tailored to
address the residential custody decision. Relatedly, she claims the trial court
"plac[ed] too much weight on recommendations in an Individualized Education
Plan (IEP)6, without specifying its purpose of admission." She claims the report
"was only submitted simply to show [the] child went to a school psychologist,
who diagnosed him with ADHD." The gravamen of her argument is that the IEP
6
The IEP requires J.T. to attend smaller classes.
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and Dr. Sinha's recommendations are inadequate substitutes for a professional
custody evaluation.
The record shows that on February 11, 2022, the trial court ordered
defendant to provide plaintiff "proof that the child has been diagnosed with
ADHD, and written proof that said condition is limited by [N.J.] Cares insurance
to one visit per month" within seven days. 7 The February 11 order further stated
that defendant "shall submit anything she wishes, to this court, regarding reasons
for why the child should remain in her residential custody and not [be]
transferred to the custody of [plaintiff]. [Plaintiff's] counsel may also
supplement his submission to the court." The parties had until February 14,
2022 to provide the additional information to the court and each other. 8
Defendant provided two documents to the trial court concerning J.T.'s
ADHD diagnosis: the IEP and Dr. Sinha's report. She did not provide any
7
Defendant had claimed that her insurance limited J.T.'s coverage to one
therapy session per month.
8
We note defendant asserts on appeal "the only court date prior to the plenary
hearing was this May 10, 2022 hearing where there was no definitive answer as
to whether a plenary hearing will be scheduled. There was merely tentative
dates and requests for email submissions from the court of evidence it felt was
necessary. No formal discovery schedule [was] ever given."
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additional reports or documents. Nor did she provide any additional reports or
documents in support of her motion for reconsideration.
In denying the reconsideration motion, the trial court noted defendant:
has not presented any good reason for the court to
reconsider new evidence. The evidence [defendant]
wishes to rebut was provided by her during the course
of discovery and was deemed relevant by this court. At
no time did she nor her counsel, request withdrawal of
said report [nor] an opportunity to rebut and[\]or temper
said evidence. Moreover, the alleged opinion of Dr.
Gill,9 that [defendant] claimed exist[s], was not
referenced during the trial nor provided to this court at
this motion.
Defendant argues the IEP "is starkly different from a best interest
evaluation by an expert." She asserts, "[a]fter being confronted with evidence
from Dr. Sinha that those recommendations were not narrowly tailored,
essentially given to all parents, and not specific to J.T.," the court never allowed
her "the opportunity to supplement the report with an actual best interest
analysis." The record does not support that contention. Defendant had ample
opportunity to retain a custody expert or to ask the court to appoint one. More
9
Defendant referenced Dr. Gill in her certification for the motion to reconsider
stating he "opined that no medication was needed for [J.T.]"
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than six months elapsed between the trial court's February 11, 2022 order and
the plenary hearing.
That said, we agree with defendant that an IEP serves a very different
purpose than a best interests evaluation. An IEP is "a written plan which sets
forth present levels of academic achievement and functional performance,
measurable annual goals, and short-term objectives or benchmarks, and
describes an integrated, sequential program of individually designed
instructional activities and related services necessary to achieve the stated goals
and objectives." N.J.S.A. 30:4-165.8(b). In contrast, a custody evaluation "is
an expert report where the court expects, and is assisted by, the independent
professional judgment of a licensed mental health expert." Koch v. Koch, 424
N.J. Super. 542, 550 (Ch. Div. 2011).
It would have been preferable if the trial court had the benefit of a
professional best interests evaluation to provide a neutral mental health
assessment to inform the court's exercise of discretion. See Rule 5:3-3(b). In
Kinsella, our Supreme Court acknowledged that "[i]n implementing the 'best-
interest-of-the-child' standard, courts rely heavily on the expertise of
psychologists and other mental health professionals." 150 N.J. at 318. The
Court stressed the importance of mental health experts in custody disputes,
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embracing our opinion in Fehnel v. Fehnel, where we held the trial court should
have granted an adjournment for the parties to obtain expert psychological
witnesses once it became evident, shortly before trial, that a true dispute over
custody existed. 186 N.J. Super. 209, 215-16 (1982). The Kinsella Court
quoted extensively from Judge Pressler's opinion in Fehnel, where she
explained:
There are obviously few judicial tasks which involve
the application of greater sensitivity, delicacy and
discretion than the adjudication of child custody
disputes, which result in greater impact on the lives of
those affected by the adjudication, and which require a
higher degree of attention to the properly considered
views of professionals in other disciplines. That is why
a probation department investigation and report is
mandated by R. 4:79-8(a). That is also why the parties
must be afforded every reasonable opportunity to
introduce expert witnesses whose evaluation of the
family situation may assist the judge in determining
what is best for the children. There have been frequent
doubts expressed regarding the viability of the
traditional adversarial process as an appropriate dispute
resolution technique in child custody cases. But as long
as we continue to resort to that process, it must be
permitted to function consistently with its highest
potentials.
[150 N.J. at 319 (quoting Fehnel, 186 N.J. Super. at
215).]
But in the matter before us, defendant never sought to obtain an expert
report and never asked for an adjournment to retain an expert even as she moved
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for reconsideration based, in part, on the trial court's reliance on the IEP and Dr.
Sinha's report. Moreover, defendant cites no authority for the proposition that
a professional best interests evaluation is required in all custody disputes. 10 We
therefore do not believe her due process rights were violated. Nor are we
persuaded the trial court abused its discretion in the manner in which it made
use of the IEP and Dr. Sinha's report as part of its best interests analysis.
V.
In sum, accounting for the deference we owe to Family Part decisions, we
are not persuaded that the trial court abused its discretion in weighing the
statutory best interests factors based on the testimony and evidence adduced at
the plenary hearing, and we decline to substitute our judgment for the trial
court's. To the extent we have not specifically addressed them, defendant's
10
We note that Rule 5:8-1 provides in pertinent part that when mediation fails,
a court in its discretion may order “an investigation to be made by the Family
Division of the character and fitness of the parties, the economic condition of
the family, the financial ability of the party to pay alimony or support or both,
and the parties' homes, which shall be limited to a factual description of the
home where the child will reside or visit, appropriate child safety precautions in
the home, number of household members and their relationship to the child, and
criminal record checks for both parties.” See also Administrative Office of the
Courts, Family – Revised Standards for Child Custody and Parenting Time
Investigation Reports (June 21, 2019) (Directive #12-19) (promulgating revised
standards for Custody and Parenting Time Investigation Reports to "provide
statewide uniformity and clarity as to . . . the situations appropriate for ordering
. . . such reports").
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remaining arguments, including her contention that the trial court was biased
against her, lack sufficient merit to warrant discussion. See Rule 2:11-
3(e)(1)(E).
We conclude by reminding the parties that custody determinations are not
chiseled in granite. Indeed, this appeal arises from a party's motion to switch
the primary residence parent. Either party may exercise their right to seek
modification of the residential custody arrangement based on updated
information pertaining to the best interests of the child.
Affirmed.
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