ANGEL GORSKI v. GREGORY YOUNG

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1936-05T51936-05T5

ANGEL GORSKI,

Plaintiff-Respondent.

v.

GREGORY YOUNG,

Defendant-Appellant.

_____________________________

 

Submitted October 11, 2006 - Decided October 26, 2006

Before Judges Coburn and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FD 05-531-00.

Gregory Young, appellant pro se.

Respondent Angel Gorski did not file a brief.

PER CURIAM

Defendant, Gregory Young, appeals from an order of the Family Part entered on November 1, 2005, denying his motion for a change of residential custody of his six-year-old son, Blake. The primary issue raised on appeal is whether defendant's motion for a change of custody should have been decided without a plenary hearing. Because we conclude that a plenary hearing should have been conducted, we vacate the order of November 1, 2005, and remand. Mackowski v. Mackowski, 317 N.J. Super. 8, 11 (App. Div. 1998).

Defendant and plaintiff, Angel Gorski, were involved in an eight-month dating relationship, from which Blake was born on June 6, 1999. Plaintiff has been the primary residential parent since that date with defendant having liberal parenting time. On July 15, 2005, while defendant had custody of Blake for the weekend, defendant received a telephone communication from a hospital advising that plaintiff had been admitted. Plaintiff's mother informed defendant that after plaintiff had consumed alcoholic beverages earlier in the evening, she stood on a seawall and jumped in the water after threatening suicide.

Believing that plaintiff is mentally unstable and may attempt suicide in the future, causing emotional harm to their son, defendant filed an order to show cause, seeking a change in residential custody. The application for the order to show cause was denied, and the matter was converted to a motion. Plaintiff opposed the motion and cross-moved to compel payment of child support. Contrary to defendant's request, the motions were decided without oral argument. On August 23, 2005, an order was entered denying defendant's motion for a change of custody; denying both parties' application for mental and/or alcohol evaluations; and directing that future child support be paid through probation. On or about September 9, 2005, defendant moved for reconsideration, arguing that the motion judge erred in deciding the motion for change of custody without benefit of oral argument and a plenary hearing. On October 28, 2005, the judge granted reconsideration, entertained oral argument on defendant's motion, and again denied the application for a change of custody without a plenary hearing.

We have carefully considered the record and are satisfied that defendant made a prima facie showing that there were genuine and substantial issues concerning his request for a change of residential custody of the parties' son. Defendant had presented evidence of not only plaintiff's attempted suicide, but also that: 1) during the prior school year Blake had been absent from school eighteen days, and tardy on thirty-four other days; and 2) plaintiff's own family members had expressed their willingness to support defendant's efforts for obtaining residential custody of Blake because of their concerns regarding plaintiff's inability to care for Blake. We conclude that when confronted with issues concerning plaintiff's mental fitness to remain the custodial parent, and whether it is causing a detrimental effect on Blake as evidenced by his school absences and days tardy, a plenary hearing should have been conducted. R. 5:8-6; Mackowski, supra, 317 N.J. Super. at 11. The denial of a hearing denied defendant an opportunity to present his case on the custody issue. Accordingly, we vacate the order of November 1, 2005, and remand the issue concerning change of residential custody to the motion judge in order that a full plenary hearing can be conducted on defendant's request. We are also satisfied on remand the judge should reconsider defendant's request that plaintiff undergo a psychological evaluation to determine her ability to remain the custodial parent. See R. 5:3-3(a) and (b).

The order of November 1, 2005, is vacated; and the matter remanded to the Family Part to conduct a plenary hearing in accordance with this opinion.

 

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A-1936-05T5

October 26, 2006