C.O. VS. K.G. AND U.O. (FD-09-1010-15, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0181-20
C.O.,
Plaintiff-Appellant,
v.
K.G.,
Defendant-Respondent,
and
U.O.,
Defendant-Appellant.
________________________
Argued March 10, 2021 – Decided April 13, 2021
Before Judges Whipple, Rose, and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FD-09-1010-15.
Bonnie C. Frost argued the cause for appellants
(Einhorn, Barbarito, Frost & Botwinick, PC,
attorneys; Bonnie C. Frost and Jessie M. Mills, on the
briefs).
Adam C. Brown argued the cause for respondent
(Freeman Law Center, LLC, attorneys; Adam C.
Brown, of counsel and on the brief).
PER CURIAM
In this appeal we are asked to determine whether the Family Part judge
abused his discretion when he ordered a modification of a custody and
parenting time order without a plenary hearing. The appellants, C.O.
(Cecilia) 1 , paternal grandmother and custodial caregiver of the child, M.O.
(Maria), and U.O. (Oscar), Maria's biological father, argue a plenary hearing
was necessary to determine whether respondent, K.G. (Kayla), Maria's
biological mother, is fit to have overnight parenting time with Maria. We
reverse and remand for a plenary hearing.
Maria was born in December 2013 to Kayla and Oscar. Maria has lived
with Cecilia and her husband since she was three weeks old. Kayla has four
children in addition to Maria, who have different fathers and differing
parenting arrangements.
Kayla stayed overnight with Maria at Cecilia's home intermittently
before the first custody order was entered. On March 10, 2015, the previous
Family Part judge granted joint legal custody of Maria to Cecilia, Kayla, and
1
We use initials and pseudonyms for the parties' names in the interest of
protecting their confidentiality, pursuant to Rule 1:38-3(d)(13).
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Oscar. Cecilia had sole residential custody, while Kayla was provided liberal
parenting time, including overnights. Kayla was required to give Cecilia
advance notice regarding parenting time.
On October 6, 2015, Cecilia obtained a temporary restraining order
(TRO) against Kayla, because Kayla threatened her with violence. Ten days
later, the TRO was dismissed. In June 2016, concerned with what she
described as Kayla's "erratic behavior," Cecilia filed an application requesting
that Kayla be ordered to undergo an evaluation by a mental health professional
and to suspend Kayla's custody and parenting time. On July 19, 2016, the
court, with consent of the parties, suspended Kayla's overnight parenting time
and reduced Kayla's parenting time to four hours on Fridays and five hours on
Saturdays. The court's reasons were placed on the record by a different judge,
but we have not been provided with that transcript. Nor did the trial court, on
this motion, inquire as to the reasons for modifying Kayla's parenting time and
custody from that record.
The parties dispute whether Kayla continued to consistently exercise her
right to this parenting time or complied with psychotherapy and a mental
health evaluation. Further, it is unclear to this court whether she was ordered
to do so, as the order contained no such requirements.
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On July 7, 2020, Kayla moved for modification of the custody order,
requesting joint residential custody of Maria, and fifty-fifty parenting time. In
her application, Kayla alleged she asked on multiple occasions if Maria could
sleep over and on all occasions was told no. 2 She also stated she wanted to
spend more time with her daughter. She explained that because she and
Cecilia had constantly argued and she kept getting kicked out, Kayla, Oscar
and Cecilia agreed they should share joint custody of Maria, and Kayla could
visit Maria whenever she wanted. Kayla asserted at one point she and Cecilia
had a heated argument and was told to leave Cecilia's house along with her
oldest daughter, A.A. (Ashley), and had to go to a hotel. Kayla alleged that is
why Cecilia filed for a TRO and for modification of the custody order.
Although the TRO was dismissed, Kayla asserted because she was living
in a hotel room, the court granted Cecilia residential custody, and Kayla was
only allowed to pick Maria up on Fridays from 3:00 p.m. to 7:00 p.m. and
Saturdays from 9:00 a.m. to 2:00 p.m. To support her capability to have
overnights with Maria, Kayla noted that she bought a bunk bed, so Maria has
her own bed, but Cecilia still refused. Kayla further asserted that now she has
her own apartment in Jersey City and lives with her fiancé, along with his
2
The custodial order in place did not allow overnights.
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child, and her daughter Ashley, and Maria, would share a room with the bunk
bed. Moreover, Kayla said, she now has a job as a full-time pharmacy
technician.
Cecilia and Oscar both opposed Kayla's application with certifications
describing Kayla as erratic, unstable, suicidal, and volatile. They challenged
Kayla's factual assertions about her parenting, her job, and apartment as
disingenuous, and they reported a different chain of events. They further
argued Kayla was required to undergo an evaluation and attend therapy and
had not done so.
The trial court held two telephonic hearings on August 3 and August 12,
2020. Cecilia and Oscar were represented by counsel, and Kayla appeared pro
se. All three adults testified at the first hearing, and some of the transcript is
indiscernible. Remarkably, no parties were provided an opportunity to
conduct cross-examination. Kayla reiterated what was presented in her
motion. Oscar told the court he opposed Kayla's request and he had taken
Kayla to the hospital because she was suicidal on more than one occasion.
Cecilia certified in her opposition papers that she witnessed Kayla physically
punish two of her other children by hitting them and digging her nails into
Ashley's arm.
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After considering the testimony and reviewing the prior custody orders,
the judge said the following:
First, this is an analysis of custody and parenting
time[,] not between the two parents of the child, but
between her grandmother and the mother of the child.
And I'll say that it's pretty clear under New Jersey law,
grandparents do not have the same legal rights to
custody and parenting time that the natural parents do.
So I don't need to find any changed circumstances to
justify revisiting what has been going on for these past
few years.
The court found Oscar's testimony biased: "his interests and [his]
mother's interests are the same. But [he] clearly has an interest and a bias in
the case. Might be making this out to be something more than it is." No
medical records or other proofs were submitted by either side on this point.
The court questioned Kayla regarding her employment status; she
testified she was a "full[-]time pharmacy technician . . . ." However, when
Kayla presented tax documents in support of this employment, the court found
Kayla was not credible and had misrepresented her full-time status.
Nevertheless, the judge found Kayla was employed less than full-time, was
attending school, had an apartment lease, and raises other children. The judge
indicated he would put steps in place to grant Kayla's application.
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Following the August 13, 2020, hearing, the court issued two orders,
both entered on August 18, 2020. In the first order, which took effect the day
after the hearing on August 14, 2020, Kayla was granted parenting time for the
first four weeks, with a schedule of Fridays from 3:00 p.m. until 7:00 p.m. and
Saturdays from 9:00 a.m. to 8:00 p.m. For the subsequent six weeks, Kayla's
parenting time with Maria was set to increase to include overnights: every
Friday at 3:00 p.m. until Saturday at 8:00 p.m. And after those ten weeks
passed, Kayla would be permitted to file an application to reassess her custody
and parenting time. In the second order, the court required inspection of
Kayla's home after the ten weekend visits. On September 7, 2020, Cecilia
filed an emergent application with this court, requesting a stay of the trial
court's August 18, 2020 order, which was denied. This appeal followed.
We review a trial judge's interpretation of law de novo. "A trial court's
interpretation of the law and the legal consequences that flow from established
facts are not entitled to any special deference." Manalapan Realty v.
Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). The general rule is that
findings by a court are "binding on appeal when supported by adequate,
substantial credible evidence." Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65
N.J. 474, 484 (1974) (citing N.J. Turnpike Auth. v. Sisselman, 106 N.J. Super.
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358 (App. Div. 1969)). "Only when the trial court's conclusions are so 'clearl y
mistaken' or 'wide of the mark' should an appellate court intervene and make
its own findings to ensure that there is not a denial of justice." N.J. Div. of
Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of
Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).
"'[A] judgment involving the custody of minor children is subject to
modification at any time upon the ground of changed circumstances.'" Innes v.
Carrascosa, 391 N.J. Super. 453, 500 (App. Div. 2007) (quoting Sheehan v.
Sheehan, 51 N.J. Super. 276, 287 (App. Div. 1958)). A parent seeking to
modify parenting time must show changed circumstances and that the
modification is in the best interests of the child. Finamore v. Aronson, 382
N.J. Super. 514, 522-23 (App. Div. 2006) (citing Todd v. Sheridan, 268 N.J.
Super. 387, 389 (App. Div. 1993); Masterpole v. Masterpole, 181 N.J. Super.
130, 136 (App. Div. 1981)). "A custody arrangement adopted by the trial
court, whether based on the parties' agreement or imposed by the court, is
subject to modification based on a showing of changed circumstances, with the
court determining custody in accordance with the best interests standard of
N.J.S.A. 9:2-4." Bisbing v. Bisbing, 230 N.J. 309, 322 (2017) (citing Beck v.
Beck, 86 N.J. 480, 496 n.8 (1981)).
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N.J.S.A. 9:2-4(c) sets out the statutory factors for a best interests
analysis, requiring that
[i]n 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. A parent shall not be deemed
unfit unless the parents' conduct has a substantial
adverse effect on the child.
When examining a request for change in custody, the court must
consider the challenging parent's fitness and the welfare of the children.
Sheehan, 51 N.J. Super. at 290. To determine fitness, "[t]he court will look to
the 'character, condition, habits and other surroundings'" of the parent. Id. at
291 (quoting Clemens v. Clemens, 20 N.J. Super. 383, 392 (App. Div. 1952)).
The consideration of the child's welfare means the "'safety, happiness,
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physical, mental and moral welfare of the child.'" Id. at 291 (quoting Fantony
v. Fantony, 21 N.J. 525, 536 (1956)). This "concerns more than the physical
well-being resulting from the furnishing of adequate food, clothing and shelter.
It concerns, inter alia, the spiritual and social welfare of the child." Id. at 292.
A party seeking such custody modification bears the burden of proof to
demonstrate that the status quo is no longer in the best interest of the child.
Bisbing, 230 N.J. at 322.
As the party seeking modification, it was Kayla's burden to prove that
such a modification of the July 2016 custody order would be in Maria's best
interest. This burden can be met only if she is able to show that a substantial
change in circumstances has occurred since the custodial agreement had been
put in place. See Finamore, 382 N.J. Super. at 522; Todd, 268 N.J. Super. at
398; Mastropole, 181 N.J. Super. at 136; Sheehan, 51 N.J. Super. at 276.
This standard applies regardless of whether custody was granted to a
third party or a natural parent. Todd, 268 N.J. Super. at 397-98. This court
emphasized in Sheridan that the third party who is:
able to show that he or she stands in the shoes of a
parent to the child and thus in parity with the natural
parent . . . should be accorded the status of a natural
parent in determining the standard to be applied to the
quest for custody. In such circumstances, the best
interests test should apply.
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[Ibid. (citing Zack v. Fiebert, 235 N.J. Super. 424, 432
(App. Div. 1989)) (holding that there is no one
standard that applies in every third-party custody case;
"the standard to be applied depends on the status of
the third-party [vis-à-vis the natural parent and the
child.").]]
Here, the trial court applied an incorrect legal standard. The judge failed
to recognize that Maria had lived with Cecilia since she was three-and-a-half-
weeks old, and Cecilia was her primary caretaker since the March 2015, order
granting physical custody of Maria to Cecilia. It is clear that while Kayla has
had parenting time and retains parental rights and joint legal custody, Cecilia
stands in the shoes of a parent to Maria. Therefore, the burden in this matter to
show a change of circumstances rests with the parent who seeks modification,
Kayla.
In K.A.F. v. D.L.M., 437 N.J. Super. 123 (App. Div. 2014), we
addressed whether a third party has custodial rights as a psychological parent
to a child. There, a former domestic partner sought custodial and parenting
rights to a child as a psychological parent. Id. at 127. We acknowledged the
constitutional rights of natural parents, while cautioning that the fundamental
liberty interest in parenting "is not absolute." Id. at 131-32. "The presumption
in favor of the parent will be overcome by 'a showing of gross miscondu ct,
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unfitness, neglect, or "exceptional circumstances" affecting the welfare of the
child[.]'" Id. at 132 (alteration in original) (quoting Watkins v. Nelson, 163
N.J. 235, 246 (2000)). The "exceptional circumstances" category includes
"psychological parent cases in which a third party has stepped in to assume the
role of the legal parent" and "does not require proof that a parent is unfit." Id.
at 132 (quoting V.C. v. M.J.B., 163 N.J. 200, 219 (2000)).
Courts look at four factors in deciding whether a third party has attained
standing as a child's psychological parent: "[T]he legal parent must consent to
and foster the relationship between the third party and the child; the third party
must have lived with the child; the third party must perform parental functions
for the child to a significant degree; and most important, a parent-child bond
must be forged." Id. at 133 (alteration in original) (quoting V.C., 163 N.J. at
223).
Based on our review of the record, the trial court engaged in improper
burden shifting when it stated that Cecilia was merely a "non-parent"
grandmother to Maria. The judge was incorrect when he stated "the courts
have made it an extra burden for non-parents that have to prove [custody or
parenting time] by clear and convincing evidence, not the regular
preponderance of evidence. There is a stronger burden." While applicable in
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other cases, this statement of law fails to address the fact that Cecilia is not a
mere non-parent.
Moreover, the trial court here found a change of circumstances during
the two August hearings based on cursory review of the current custody
arrangement. Notably, the judge had not explained how these were adequate
changes of circumstances, nor what the circumstances had been previously.
Our review of the record reveals it is replete with unresolved factual issues and
no application or analysis of the N.J.S.A. 9:2-4(c) factors. Moreover, the
record is barren of any discussion of Rule 1:40-5 screening for mediation, a
favored procedure.
In J.G. v. J.H., 457 N.J. Super. 365, 372-73 (App. Div. 2019), we said:
A thorough plenary hearing is necessary in contested
custody matters where the parents make materially
conflicting representations of fact.
A court, when presented with conflicting factual
averments material to the issues before it, ordinarily
may not resolve those issues without a plenary
hearing. While we respect the family court's special
expertise, a court may not make credibility
determinations or resolve genuine factual issues based
on conflicting affidavits . . . . Moreover, a plenary
hearing is particularly important when the submissions
show there is a genuine and substantial factual dispute
regarding the welfare of children.
....
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"[T]he matter of visitation 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 visitation more commensurate with a child's
welfare . . . it should require it."
[(quoting Wagner v. Wagner, 165 N.J. Super. 553, 555
(App. Div. 1979)); see also Faucett v. Vasquez, 411
N.J. Super. 108, 118-19 (App. Div. 2009) (stressing
the need for a plenary hearing even prior to a
temporary modification of custody).]
Much like J.G., the proceeding that took place here did not constitute a
plenary hearing. The judge asked the parents questions, going back and forth
between them. The parties were not given an opportunity to exchange
discovery, retain an expert witness, call witnesses or cross-examine each other.
For this reason alone, we are constrained to reverse and remand for a plenary
hearing. And coupled with the misapplication of the law, we remand this case
to be assigned to a different judge. R. 1:12-1(d).
Reversed and remanded. We do not retain jurisdiction.
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