SHANE WEATHERINGTON v. CHANCEEN GORE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4599-04T24599-04T2

SHANE WEATHERINGTON,

Plaintiff-Appellant,

vs.

CHANCEEN GORE,

Defendant-Respondent.

__________________________________

 

Submitted: January 17, 2006 - Decided February 10, 2006

Before Judges Cuff and Parrillo.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Essex County, Docket No. FD-07-5071-05.

Chandra R. Cole, attorney for appellant.

Chanceen Gore, respondent pro se.

PER CURIAM

Plaintiff Shane Weatherington and defendant Chanceen Gore are the parents of a daughter, now five years old. Plaintiff appeals from an order granting residential custody of the child to defendant and granting visitation to plaintiff with the child every weekend. We reverse and remand for a hearing on the issue of custody.

In January 2005, plaintiff filed a petition seeking designation as the parent of primary residence for his daughter. The child was born on October 7, 2000. On February 4, 2005, a Family Part judge ordered a Best Interest Investigation and urine testing for both parents.

The Custody/Parenting Time Investigation Report was conducted in advance of the April 8, 2005 hearing. The probation officer interviewed plaintiff and defendant, conducted a home inspection of plaintiff's residence, considered statements in support of plaintiff's petition, obtained the attendance records from the child's day care program, and obtained the results of urine testing of both parties. The documents obtained by the probation officer revealed that all urine screens of plaintiff were negative but one of six urine screens of defendant was positive for marijuana. A home inspection of defendant's residence could not be conducted. The probation officer reported that the child had lived with defendant only since January 2005. The probation officer concluded the report as follows:

It is the opinion of this Officer that both parties have the best interest of the minor in mind, however Mr. Weatherington has been the primary caretaker of the minor until his schedule changed January 2005. He has requested a schedule change for the purpose of resuming responsibility of primary caretaker of the minor.

At the April 8, 2005 hearing, an order was entered granting defendant residential custody of the child, granting plaintiff visitation every weekend and alternating holidays, and imposing on plaintiff a $186 weekly child support obligation. On appeal, plaintiff argues that the judge failed to consider the statutory factors that govern custodial determinations, that the judge failed to clearly articulate the reasons for his decision, and failed to consider the evidence submitted by plaintiff or the probation custody evaluation. Defendant contends that plaintiff has sought to cast her parental efforts in a bad light and has distorted his role in the care of their daughter.

Custody and visitation issues are resolved using a best interests analysis that gives weight to the factors outlined in N.J.S.A. 9:2-4. V.C. v. M.J.B., 163 N.J. 200, 227-28, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000). Each factor is only one consideration in the balance. In cases involving the custody of a child, the primary consideration should be the best interest of the child. Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). The court should focus upon "'he safety, happiness, physical, mental and moral welfare of the child.' Terry v. Terry, 270 N.J. Super. 105, 119 (App. Div. 1994) (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)).

Here, the judge did not consider the facts assembled in the investigation submitted by the probation officer. In fact, the record provides little, if any, inkling that the judge considered the report. Rather, the proceeding commenced as if the issue of custody was settled and the matter before him at that time simply concerned a visitation schedule. The information before the judge, however, was sufficient to alert the judge that the issue of residential custody was not settled between the parties and that plaintiff had raised concerns that required a full consideration of the best interests of the child.

We, therefore, reverse and remand for full consideration of the issue of custody. The judge shall consider each statutory factor and make appropriate findings of fact and conclusions of law. We note, however, that we do not fault the failure of the judge to interview the child. We discern no mistaken exercise of the judge's discretion for failing to interview a five year old child to elicit her residential preference. See Lavene v. Lavene, 148 N.J. Super. 267, 272 (App. Div.) (the age of the child affects the weight to be accorded the child's preference), certif. denied, 75 N.J. 28 (1977). Moreover, a trial judge is not bound by the preference expressed by a child of appropriate age and maturity; the child's preference is just one of many factors to be considered by the judge. Ali v. Ali, 279 N.J. Super. 154, 169 (Ch. Div. 1994). We also express our dismay at the apparent expression of a presumption in favor of the mother as the primary residential custodian. The best interest approach requires a factual analysis of the individual case. Sacharow v. Sachrow, 177 N.J. 62, 82 (2003) (quoting Fantony, supra, 21 N.J. at 536-37); Scanlon v. Scanlon, 29 N.J. Super. 317, 325 (App. Div. 1954). Indeed, in Beck v. Beck, 86 N.J. 480, 485 (1981), the Court recognized that a child derives innumerable benefits from the care and nurture of each parent. We also note that our disposition does not require an alteration of the current custodial and visitation arrangement pending the hearing on remand.

 
Reversed and remanded for further proceedings consistent with this opinion.

The order also established a child support obligation. Plaintiff's appeal focuses solely on the custodial determination.

(continued)

(continued)

5

A-4599-04T2

February 10, 2006