QUINETTA YOUNG v. WILLIE LEE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5283-04T45283-04T4

QUINETTA YOUNG,

Plaintiff-Respondent,

v.

WILLIE LEE,

Defendant-Appellant.

_________________________________________________

 

Submitted November 9, 2005 - Decided January 19, 2006

Before Judges Axelrad and Payne.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Essex County, FD-07-7972-99.

Joel S. Ziegler, attorney for appellant.

Quinetta Young, respondent pro se.

PER CURIAM

This appeal presents an unfortunate example of the difficulties caused by precipitate judicial action in matters involving child custody. It arises from a determination by a Family Part judge, at the conclusion of the second month of a school year, to terminate shared custody of five and one-half year old Destin, end Destin's residence with his natural father in New Jersey during the school week, and award residential custody of Destin to the child's natural mother, who had moved to Pennsylvania with her fiancé. These actions occurred at an abbreviated non-evidentiary proceeding at which the father was not present. Notice to the father is an issue that was not explored at the hearing and remains contested. No findings of fact or conclusions of law were entered by the judge, who heard the case in the most summary of manners and apparently based his decision on his personal disapproval of joint custody arrangements and on unsworn comments by the mother's attorney that do not appear to have had any basis in fact. No provisions for visitation were made. See R. 5:8-5.

The decision by that judge to immediately wrest custody from the father was promptly challenged upon notice to the father that the child had not been returned by the mother to school in New Jersey and had been removed from his custody by court order and taken to another state. Nonetheless, the unorthodox nature of the initial proceeding was not recognized by the second judge deciding the father's motion for reconsideration, who treated it as a request for change of custody pursuant to N.J.S.A. 9:2-4. When the matter was fully considered five months after the motion for reconsideration had been filed, the judge found that no change of circumstance had been demonstrated by the father, upon whom the judge placed the burden of proof, and that no hearing was warranted on the custody issue. Custody thus has remained with the mother since November 2004, and issues surrounding the child's best interests that should have been properly resolved at that time now have been burdened by the fact of more than a year's residence by the child with the mother and questions as to whether the child's schooling, disrupted in 2004 by the mother, should again be disrupted by the court.

The record presented to us in this appeal is very incomplete, and as a result, many facts essential to its reasoned determination are missing. We know from an incidental reference that Destin was born on February 19, 1999. His parents never married, and it is unclear whether they ever lived together. The record suggests without material dispute that at least by the time that the child was eight months old, the father was taking an active interest in his care. The New Jersey Division of Youth and Family Services (DYFS) has at times been involved with the child, although the nature of its involvement is unclear to us, nor do we know whether it maintained any continuing supervision over the child until his abrupt removal from the state.

The record reflects that in 1999, the father sought custody of the child, but that his application was dismissed by consent in an order dated December 13, 1999. A June 27, 2000 order embodies the parents' agreement to share residential custody in alternating weeks. See N.J.S.A. 9:2-4a (permitting such an arrangement). Similar terms were set forth in a court order dated June 26, 2001. However, it appears from the record that in September 2004, the parents agreed that Destin would remain with his father and attend kindergarten in Rahway during the week, and that he would spend his weekends, commencing on Friday after school ended, with his mother.

Although we are unsure of all of the precipitating factors, the mother, who had by then moved to Morrisville, Pennsylvania with her fiancé, sought residential custody of Destin in a motion that was heard in the Family Part on November 5, 2004. The transcript of that proceeding is six pages in length, the first two pages of which consist of front matter and the last page and one-half of which is occupied by a personal exchange between the judge and the mother's attorney. As we have stated, the father was not present at the proceeding. Inquiry by the court concerning notice to him consisted of the acknowledgment that: "Defendant has not shown up." However, the mother did disclose to the court that the father opposed any change of custody.

The decision to award the mother residential custody in another state was based solely on the following exchange:

THE COURT: What are we doing here? . . . [W]hat are you looking for? Does the child live with you ma'am?

[MOTHER]: Well, actually, we have joint physical custody right now with every other week, but I moved to Pennsylvania.

THE COURT: And you're requesting the Court to allow you to move to Pennsylvania?

[MOTHER]: Yes.

THE COURT: With the child. Do you have family in Pennsylvania where you're going to be moving to?

[MOTHER]: No. Just me and my fiancé, we moved out there.

THE COURT: Okay. And is your house or apartment large enough?

[MOTHER]: Yes. I have a three bedroom.

THE COURT: Have you discussed the move with the child's father?

[MOTHER]: Yes. We have gone over it back and forth now - right now he's in Rahway and he goes to the Rahway School System. And we - I travel back and forth to bring him to school.

THE COURT: Well, you've had a discussion with him about you moving?

[MOTHER]: Yes.

THE COURT: And what is his position?

[MOTHER]: Well, he doesn't want him to come up there and live with me.

* * *

THE COURT: Well, he's not here.

[MOTHER'S ATTORNEY]: Judge, we're talking about a five year old child here. And if I can say this diplomatically, if I can, I've been at the Bar very close to 45 years and this is the worst arrangement that I've seen DYFS make for a family of three in all the years that I have practiced law. This is a horrible arrangement. This is a five year old kid.

THE COURT: I don't allow an arrangement like that.

[MOTHER'S ATTORNEY]: Who spends two months with her - two weeks with her and two weeks with the father. And the kid is learning nothing.

THE COURT: I'm sorry.

[MOTHER'S ATTORNEY]: The kid is learning nothing, Judge, except how to be wild and deviant and - and disobedient and falling down and pulling teachers down and hitting - hitting playmates and -

THE COURT: He's a troubled child.

[MOTHER'S ATTORNEY]: It - it's - it's - it's amazing that the kid goes from week to week.

THE COURT: Okay. Let the order give her residential custody and permission to move to Pennsylvania and the defendant did not appear and we have not heard from him.

I.

We reverse and vacate the court's November 5, 2004 order. We start with the principle, well settled in our law, that a parent has a fundamental right to the companionship of his or her child. Troxel v. Granville, 530 U.S. 57, 67, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49, 60 (2000); Sacharow v. Sacharow, 177 N.J. 62, 79 (2003); Watkins v. Nelson, 163 N.J. 235, 245 (2000); Matter of Baby M., 109 N.J. 396, 450 (1988). As a consequence, the parent has a constitutional right to due process when a change in the custody of that child has been requested, including the right to adequate notice and a fair opportunity to be heard with respect to the issue. Matter of C.A., 146 N.J. 71, 93-94 (1996); Div. of Youth & Fam. Servs. v. M.Y.J.P., 360 N.J. Super. 426, 464 (App. Div.), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004); Schuyler v. Ashcraft, 293 N.J. Super. 261, 281-84 (App. Div. 1996) (voiding under federal Parental Kidnapping and Prevention Act and Uniform Child Custody and Jurisdiction Act custody order entered without notice). That right to due process was not adequately protected in this case. Although the Family Part judge was informed that the father had residential custody of Destin during the week while he attended school in New Jersey and that the father opposed any change in the present custodial arrangement, the judge did not make any inquiry into the existence or adequacy of notice to the father, he did not investigate the circumstances of the father's absence from court, and he did not seek to facilitate his presence. We find that termination of a parent's right to residential custody is of sufficient importance that it should not occur without ascertaining whether notice of the proceedings and a voluntary waiver of the right to be present has occurred. See Test v. Test, 131 N.J. Eq. 197, 200-01 (E. & A. 1942) (requiring adequate notice when custody of children is to be determined); Hyman v. Muller, 1 N.J. 124, 129 (1948) (discussing elements of due process and the consequences of their absence). Whether adequate notice existed to permit an admittedly contested custody matter to proceed in the unexplained absence of one party cannot be determined without inquiry by the trial judge. It did not occur.

Further, we find the court's casual approach to the issue of custody and removal from New Jersey to have been wholly inappropriate. N.J.S.A. 9:2-2 does not permit the removal of a child who is a native of this State, such as Destin was, without the consent of both parents or court order. When as here, the removal can be accomplished only by court order, the standard to be employed in determining the removal issue depends upon the custodial arrangement existing at the time that removal is sought. In instances in which the parent seeking removal already has residential custody of the child, the issue is determined under standards established in Baures v. Lewis, 167 N.J. 91 (2001) that permit a consideration of the interests of the custodial parent as well as the child. Id. at 115. However, in a case such as this in which "the noncustodial parent shares physical custody either de facto or de jure or exercises the bulk of custodial responsibilities . . . by formal or informal agreement," the analysis employed in Baures is "entirely inapplicable." Id. at 116. In these circumstances, "the removal application effectively constitutes a motion for a change in custody and will be governed initially by a changed circumstances inquiry and ultimately by a simple best interests analysis." Ibid.; see also O'Connor v. O'Connor, 349 N.J. Super. 381, 385 (App. Div. 2002); Chen v. Heller, 334 N.J. Super. 361, 380-82 (App. Div. 2000); N.J.S.A. 9:2-4c.

We have previously held that "changes in custody are not to be made without a plenary hearing, absent exigent circumstances." Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005). No exigency was presented to the judge in this matter and indeed, no competent evidence at all with respect to custody was offered for the court's consideration, since an oath was never administered to the sole witness present, the mother. At most, the judge knew at the time of his decision that a joint residential custody arrangement was in place with which the mother was dissatisfied.

We have also held that a lack of adequate findings by the trial judge with respect to a custody award requires remand as to that issue. Lavene v. Lavene, 148 N.J. Super. 267, 273 (App. Div.), certif. denied, 75 N.J. 28 (1977); see also N.J.S.A. 9:2-4f; R. 1:7-4(a). In the present case, no findings were made, and indeed, none of the factors required for consideration by N.J.S.A. 9:2-4c when a change of custody is contemplated was addressed by the court. As we stated in Leudtke v. Shobert, 342 N.J. Super. 202, 218 (App. Div. 2001), a case in which no analysis of the factors resulting in a change of custody occurred:

Given the nature of this hearing as one that involved the child's continued custody, and not simply relocation, N.J.S.A. 9:2-4f required the court to "specifically place on the record the factors which justify any custody arrangement not agreed to by both parents." In contested cases, the necessity for such a record of the court's reasons is mandatory. Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). The court, in reaching its decision, must specifically reference the statutory criteria found in N.J.S.A. 9:2-4c. Terry v. Terry, 270 N.J. Super. 105, 119 (App. Div. 1994). That was not done here.

The court's order of November 5, 2004 in this matter thus "clearly and unequivocally" constituted reversible error. Entress, supra, 376 N.J. Super. at 132.

II.

Upon learning of the court's change in custody, on November 10, 2005 the father moved for reconsideration. The motion was first heard by a different judge on January 13, 2005, more than two months after the motion was filed, at which time the court ordered the preparation of a best interest report and a psychological examination of the parents by Dr. Dasher, the consulting courthouse psychologist. Additionally, the father was given weekend visitation with his son.

Argument on the custody issue was held on April 25, 2005. At that time, the judge had not received any psychological reports from Dr. Dasher because funding for his services had been exhausted. The record does not reflect that the parties, who appeared pro se, were afforded an opportunity to retain private experts. The record suggests that a best interest report had been prepared by a probation officer. However, we are not aware of its contents, since it was not included in the record on appeal. The judge also made reference to a psychological assessment of the father in 1999 by an unnamed individual who did not appear at the 2005 hearing and to a prior best interest report, neither of which has been supplied for our review on appeal.

The judge nonetheless declared that he was prepared on the basis of this truncated and largely outdated record to rule without a hearing as to custody. Following argument by the father and mother, the court placed a prepared decision on the record in which he found, after an evaluation of the criteria of N.J.S.A. 9:2-4c, that the father had not met his burden of establishing a change of circumstances warranting a modification of the custodial determination made in November 2004. The parties were repeatedly chastened by the judge for their continued discord. A request by the father for an adjournment to retain an attorney was denied. Additionally, an objection by him to the use of the 1999 psychological report was overruled.

We recognize that this second judge may not have been aware of the substantive and procedural inadequacy of the November 2004 hearing. Nonetheless, we find in the circumstances that the father was entitled to a prompt rehearing of the initial custody determination, which he did not receive. Leudtke, supra, 342 N.J. Super. at 218; Terry v. Terry, 270 N.J. Super. 105, 119-21 (App. Div. 1994). Because a change from joint residential custody to sole custody in another state by the mother was sought, the burden lay with her to "demonstrate that the best interests of the child would be better served by residential custody being primarily vested with the relocating parent." O'Connor, supra, 349 N.J. Super. at 385. The second judge, mistakenly viewing the father's reconsideration motion as a motion by him for a custodial change, thus improperly allocated the burden to him.

We thus reverse the court's April 25, 2005 custody determination and remand the matter for an expedited full custody hearing. At that hearing, the parties shall be accorded the right to present evidence, including expert witnesses of their choosing, and to engage in cross-examination. In light of the complexity and serious nature of the issues presented, if financially feasible, the parties should be represented by counsel. As we stated in Leudtke,

[W]here, as here, a party is seeking relief which will impact upon a child, who has no independent representation, the court should seldom, if ever, proceed without both parents being represented, or, if they choose not to be, then being entirely satisfied that the child's interests are being adequately protected. Obviously, the child's best interest cannot be waived by the parents. The court has the power, if necessary, to appoint counsel, R. 5:8A, or a guardian ad litem, R. 5:8B, for the child.

[342 N.J. Super. at 214 (citation omitted).]

We have previously held that the mother bears the burden of proving that Destin's best interest will be served by his residence with her.

In light of our decision to vacate both the November 5, 2004 and the April 25, 2005 custody orders, we need not address at any length issues raised by the second judge's reliance on a six-year-old psychological report by an expert who was not available either for direct or cross-examination by the parties, the absence of current psychological evaluations of the parents or the child, the failure to obtain testimony from the probation officer who prepared the 2005 best interest report upon which the court relied, the absence of an evidentiary hearing, or the refusal of the judge to adjourn proceedings to permit counsel to be retained. We recognize that the procedures and rulings of the judge may have had their genesis in the court's mistaken view that the father merely sought a change of custody as the result of changed circumstances. We are not called upon to determine whether they were adequate in that context. Suffice it to say that, in the context of a motion for change from shared to sole residential custody by the mother, they were not designed to properly advance the best interests of Destin as legislation and case law require in custody proceedings such as this. Kinsella v. Kinsella, 150 N.J. 276, 317 (1997); Fantony v. Fantony, 21 N.J. 525, 536 (1956).

Because both judges have already expressed a preference for the mother in this custody dispute, and it may in the circumstances be difficult for them to view the matter otherwise, regardless of the evidence that is presented, we suggest that on remand, the custody hearing be assigned to a judge other than them. Entress, supra, 376 N.J. Super. at 133; Leudtke, supra, 342 N.J. Super. at 219; P.T. v. M.S., 325 N.J. Super. 193, 220-21 (App. Div. 1999).

 
Reversed and remanded for further expedited proceedings in accordance with this opinion.

Respondent has not filed a brief.

New Jersey presently retains jurisdiction over the mother. N.J.S.A. 2A:34-31a(1).

At a later hearing in the matter before a different judge, the father asserted an unspecified "mistake with the address." Because the record contains none of the documents filed in connection with the mother's motion for custody, and the existence of notice was never meaningfully explored in court, we cannot evaluate this assertion.

We emphasize that there has been absolutely no evidential corroboration of this statement. Destin apparently was a model student in Rahway and remained so in Pennsylvania, and he received superior grades from teachers in both locations. A second judge found that the child has "prospered both intellectually and socially."

Although the court's order is included in the father's appendix, its provisions are not fully legible.

(continued)

(continued)

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A-5283-04T4

January 19, 2006