BARRY FIELDS v. SAMANTHA RICHARDS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5507-04T45507-04T4
 
BARRY FIELDS,
 
Plaintiff-Respondent,
 
v.
 
SAMANTHA RICHARDS,
 
Defendant-Appellant.
 
 
Argued: April 5, 2006
 
Before: Judges Weissbard and Sapp-Peterson
 
On appeal from Superior Court of New Jersey, Chancery Division, Essex Co

BARRY FIELDS,

Plaintiff-Respondent,

v.

SAMANTHA RICHARDS,

Defendant-Appellant.

___________________________________________

 

Argued April 5, 2006 - Decided May 15, 2006

Before Judges Weissbard and Sapp-Peterson.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Essex County, FD-07-2906-05.

Sara Sencer McArdle argued the cause for appellant.

Barry Fields, respondent, argued the cause pro se.

PER CURIAM

Defendant Samantha Richards appeals an order of the Family Part transferring residential custody of her two children to their father, plaintiff Barry Fields. We reverse.

Defendant and plaintiff resided together for several years and have two children, Malachi Fields, born on June 22, 1998, and Shaakira Fields, born on September 24, 1999. For much of their relationship, the parties lived in Brooklyn, New York. In 2001, they moved to Newark, where they resided together until July 2004. The parties never married. Richards also has three children from other relationships: Wydeia Richards, born on August 7, 1990, Shamealya Richards, born on July 4, 1991, and Briana James, born on August 31, 2004.

On July 20, 2004, Richards filed a petition for a temporary restraining order (TRO) against Fields in our Family Part. On August 19, 2004, Richards filed a petition for a temporary order of protection against Fields in New York Family Court. On July 20, 2004, a Family Part judge here awarded joint legal custody of Malachi and Shaakira to Richards and Fields and temporary physical custody to Richards. Fields was granted visitation with the two children every other weekend. The judge also issued an order for the Newark police to assist Richards in removing her personal belongings from 754 Bergen Street in Newark, the residence she shared with Fields, and to assist her in gaining custody of Malachi and Shaakira. Thereafter, Richards moved to an apartment in Brooklyn with her children.

On September 2, 2004, a home inspection report was completed of Fields' Bergen Street residence. The report stated that the home was adequate and that the children have their own rooms. On September 3, 2004, the probation department completed a "best interest report," recommending that Fields have physical custody of the children and that the parties share joint legal custody. On September 7, 2004, a second Family Part judge ruled that custody of the two children would remain with Richards.

On January 6, 2005, a judge in the New York Family Court, heard argument on the petition filed by Richards on August 19, 2004. Richards explained that on July 7, 2004, the parties got into an argument, Fields grabbed her right arm, twisted it behind her back, and hit her in her back with the phone when she started to call 9-1-1. She also indicated that about three or four years earlier, Fields had punched her in the face and kicked her. Fields denied the allegations and claimed that Richards had grabbed his arm and hit his arm with the phone during the July 7th argument; he stated that he merely pushed her away.

The New York judge dismissed Richards' petition, finding that there was a history of family violence in the relationship and that both parties were equally credible. She found that she could not "make a determination that a family offense was necessarily committed in this case." Following the hearing, Fields filed a petition for a restraining order against Richards, alleging that Richards followed him and his girlfriend, Tanya Walker, out of the courthouse in New York and proceeded to threaten him.

On April 12, 2005, Fields filed a petition in our Family Part for a change in custody. The matter was heard by a third Family Part judge on May 9, 2005, at which time both parties appeared pro se. Although finding both parties to be fit parents, the judge awarded full physical custody to Fields. The judge explained that since Fields was retired, he was better able to be a full-time parent, although she was "not penalizing" Richards for working. The judge also found Fields' home to be more appropriate because the children would have their own bedrooms; she was concerned that Richards had five children living in a two bedroom apartment in Brooklyn. In making her determinations, the judge referenced the probation department's best interest report, which recommended that Fields have physical custody of the children.

The judge ruled that the change in residential custody from Richards to Fields would occur in June at the close of the school year. In the meantime, Fields was given visitation every weekend. The judge specified that pickup and drop-off for Fields' visitation would occur at the nearest police station, which Richards indicated was the Brooklyn police station "on Snyder and Bedford or Rogers." After the change in custody, Richards was to have visitation every other weekend.

On May 14 and 21, 2005, Fields filed reports with the New York Police Department alleging that Richards violated the court order by not showing up with the children for Fields' visitation at the scheduled time and location. Fields had been waiting for the children at the 71st precinct, which is located at Empire Boulevard, not Snyder and Bedford. On May 16, 2005, Fields filed an order to show cause with temporary restraints in the Family Part based on Richards' alleged failure to produce the children for visitation.

On May 29, 2005, Richards secured the services of her present attorney. On June 1, 2005, Fields and Richards appeared before the same judge on the visitation issue. Richards explained that she had taken the children to the precinct at Snyder and Bedford, and her attorney assured the court that Fields would have his parenting time the following weekend. The judge entered an order specifying that pickup and drop-off for the visitation would occur at the 67th precinct on Snyder Avenue between Bedford and Rogers.

On June 4, 2005, Malachi and Shaakira went to Fields' home for his weekend parenting time. Upon return, they informed their mother that Fields was no longer living at his previous Newark address on Bergen Street but was now living with Tanya Walker and her two children. They indicated that Malachi and one of Walker's sons were sleeping on the floor and Shaakira was sharing a room with a young boy. On June 11, 2005, the children again went for parenting time with Fields. According to Richards, Shaakira returned home very upset. She told her sister Wydeia that she had been hit on the back of the head with a knife by Walker, was given beer by Fields, and was threatened that if she told her mother she would never see her mother again. On June 16, 2005, Wydeia, who was then fourteen years old, signed a certification confirming these events. Wydeia further certified that Fields had sexually abused her.

As a result of Shaakira's disclosure, Richards brought the child to the police and the hospital. New York's Children's Services investigated the matter, and the New Jersey Division of Youth and Family Services (DYFS) subsequently became involved. Richards learned in court on September 9, 2005 that DYFS found the charges to be unsubstantiated. DYFS had not, however, interviewed Richards, Wydeia or Shaakira.

On June 17, 2005, Richards filed an order to show cause on an emergent basis with the Family Part, seeking a suspension of unsupervised visitation with Fields. A different Family Part judge, who was on emergent duty at the time, denied the order, finding that, because Richards currently had the children, they were not at imminent risk of harm. On June 20, 2005, Richards filed a motion to suspend Fields' visitation until DYFS could conduct a child abuse investigation into the incidents of June 11 and 12, 2005. The motion also sought to revoke, at least temporarily, the May 9, 2005 order granting residential custody to Fields. The motion was scheduled to be heard on August 5, 2005.

However, on June 23, 2005, Richards filed a notice of appeal regarding the May 9, 2005 custody order. On August 5, 2005, the parties appeared at the courthouse as scheduled, but the matter was relisted for September 9, 2005 because the judge was ill.

On September 9, 2005, the Family Part judge removed Richard's attorney from the case, finding that she had become a fact witness based on a certification she had filed in June 2005 with the motion and order to show cause. The judge concluded that Richards needed to either acquire new counsel or proceed pro se; she scheduled the matter to continue on September 23, 2005.

On September 20, 2005, Richards filed a motion for reconsideration seeking to have her counsel reinstated. The motion was scheduled to be heard on November 18, 2005.

However, on September 23, 2005, while the appeal from the earlier order was pending, a second custody hearing was conducted at which both parties appeared pro se. Richards expressed a desire to obtain an attorney because she doesn't "know much about the legal stuff," but the judge explained that she had been given time to obtain an attorney and failed to do so. During the proceedings, the judge engaged in a discussion with Fields before the arrival of Richards, who was late, and then heard testimony from Tanya Walker, Fields' fiancée. The judge next called Janet Evans, a DYFS worker, who testified that the allegations of abuse regarding the June 12th visitation had been investigated and were deemed unfounded. After hearing argument from Richards and Fields, the judge conducted interviews of Malachi, Shaakira, and Wydeia in camera. Malachi and Shaakira talked about enjoying activities with both parents and expressed a desire to continue spending time with both of them. Both children also recalled an instance in which they saw their father hit their mother with a phone. Although the record is not entirely clear on the children's preference because some of the conversation was not picked up by the microphone, the transcript seems to indicate that the children wanted to live with their mother and see their father sometimes.

After speaking with the children, the trial judge stated that she found the case to be "very troubling" because Richards had made numerous allegations regarding the conduct of Fields. However, she noted that both New York and New Jersey agencies investigated the abuse complaints and concluded that the allegations were unfounded. She also asked Fields and Walker about the children sleeping on the floor and accepted their testimony that the children had built a "tent" and were playing "camping" that night; she further noted that DYFS had made a home visit and was satisfied with the residence. The judge found Fields and Walker to be more credible than Richards and expressed a belief that Richards was coaching the children to make allegations against Fields. The judge concluded that the best interests of the children would be served by placing them in the physical custody of Fields.

On October 5, 2005, Richards filed a motion with us to stay the May 9 and September 23 orders and to reinstate her attorney. She also requested that we rule on her earlier motion to proceed as an indigent, as that motion had not yet been decided.

On October 21, 2005, the parties appeared before another Family Part judge regarding the temporary restraining order that Fields had filed against Richards on January 7, 2005. The judge determined that the allegation was not substantiated and dismissed the complaint.

On November 12, 2005, Fields was scheduled to bring the children for visitation with Richards. An argument ensued between the parties over Fields being one hour late and wanting to take a photo of Shaakira. According to Richards, Fields followed her out of the precinct, called her offensive names, and punched her in the face when she cursed back at him. Richards immediately filed a police report, and on November 14, 2005, filed a petition with the Family Part for a temporary restraining order. The judge who had made the several custody determinations granted the TRO and transferred custody of the children to Richards until November 30th, when the matter was scheduled for a hearing.

On November 17, 2005, we granted Richards' motion to stay the orders of May 9 and September 23 and to reinstate her attorney. We also granted her motion to proceed as an indigent.

On November 30, 2005, the judge denied Richards' petition for a final restraining order, finding her not to be credible. The judge rescheduled the issue of custody for December 7, 2005. The matter was subsequently rescheduled for December 15, 2005 and again rescheduled for February 2, 2006. We are advised that the judge took no further action due to the pendency of the appeal and our order staying the May 9 and September 23 orders.

Defendant argues that the May 9, 2005 custody hearing was "palpably deficient" and that a proper plenary hearing was not held because important disputed facts were not explored. In particular, defendant argues that the May 9th hearing "lacked all of the guarantees historically recognized by the courts to protect the best interests of the children," because the trial court did not inform the parties that they had the right to attorneys and the right to cross-examine the probation officer who prepared the best interest report. Defendant further contends that the court's reliance on the report is questionable because the report is flawed; that the court should not have criticized Richards for making negative comments about Fields while ignoring his comments about her; that the court should not have summarily dismissed any allegations of sexual abuse against Fields; that the court was unwarranted in becoming impatient with Richards; that the court should have asked Fields whether he still lived in a three-bedroom apartment; and that the court demonstrated a general lack of care in conducting the hearing and weighing the facts.

The paramount consideration in any custody case is the best interests of the child. Beck v. Beck, 86 N.J. 480, 497 (1981); Grover v. Terlaje, 379 N.J. Super. 400, 410 (App. Div. 2005). The Court has described this standard as one that "protects the 'safety, happiness, physical, mental and moral welfare of the child.'" Ibid. (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)). Both a father and a mother have equal rights to the custody of their children, depending on the best-interests evaluation. M.C. v. M.C., 215 N.J. Super. 132, 140 (Ch. Div. 1986); N.J.S.A. 9:2-4. In reaching its best interests determination, the trial court must specifically reference the statutory criteria set forth in N.J.S.A. 9:2-4c. Luedtke v. Shobert, 342 N.J. Super. 202, 218 (App. Div. 2001) (citing Terry v. Terry, 270 N.J. Super. 105, 119 (App. Div. 1994)). In the absence of "overwhelming admitted facts," a plenary hearing is "virtually a necessity in every custody case." M.C., supra, 215 N.J. Super. at 140.

We agree with defendant that the May 9, 2005 custody hearing contained substantial procedural deficiencies and did not constitute a plenary hearing, as required. We have stressed that, in the absence of exigent circumstances, changes in custody must not be made without a plenary hearing. Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005); see also Wagner v. Wagner, 165 N.J. Super. 553, 555 (App. Div. 1979) (noting issue of child visitation is so important that court should require plenary hearing even when parties waive it), certif. denied, 85 N.J. 93 (1980); R. 5:8-6 (providing that when custody of children is a "genuine and substantial issue," court shall set hearing date no later than six months after last responsive pleading).

Here, both parties appeared pro se and presented arguments to the court. However, no other witnesses were called, and the parties were not given an opportunity to cross-examine one another. During the proceedings, the judge referenced the best interest report, which recommended that Fields have physical custody of the children, and stated that she was "following the recommendation" of the report. Rule 5:8-4 provides that the written report of an investigation conducted for purposes of a custody determination must be furnished to the parties and "shall be received as direct evidence of the facts contained therein which are within the personal knowledge of the probation officer who made the investigation and report, subject to cross examination." In this case, however, the probation officer who prepared the report did not testify, and the parties were not informed that they were entitled to cross-examine him. See E.T. v. L.P., 185 N.J. Super. 77, 85 (App. Div. 1982) (remanding custody matter for further plenary hearing at which "all aspects" of best interest report are to be explored, with parties given opportunity to examine probation officer who conducted investigation and prepared report). In fact, Richards had apparently not received a copy of the report prior to the hearing and was therefore not in a position to respond to its contents. See ibid. (noting problem with fact that parties were not given best interest report until hearing actually began, at which time counsel were given five minutes to read document).

In addressing the allegation of child abuse against Fields, the judge relied on a September 3, 2004 DYFS letter stating that the children were happy in their father's care and were not at risk of harm. While it was permissible for the trial court to rely on the DYFS report without requiring live testimony from the DYFS worker, Richards was entitled to offer evidence to contradict statements contained in the report. W.W. v. I.M., 231 N.J. Super. 495, 506 (App. Div. 1989) (citing In re Cope, 106 N.J. Super. 336, 343-44 (App. Div. 1969)), appeal dismissed, 121 N.J. 630 (1990). The brief hearing that took place did not provide her with that opportunity.

In addition, the trial judge did not make findings regarding some of the statutory factors set forth in N.J.S.A. 9:2-4c, which must be considered in all custody determinations. Luedtke, supra, 342 N.J. Super. at 218. Specifically, the judge explained her conclusions regarding the ability of the parents to communicate and cooperate, the children's needs and education, the stability of the home environment, parental fitness, and the parents' employment responsibilities. However, the judge did not consider other factors, including the interaction and relationship of the children with their siblings and the extent and quality of time spent with the child prior to or subsequent to the separation. N.J.S.A. 9:2-4c. These factors could have affected the outcome, as Malachi and Shaakira had lived with both parents and Richards' older children for their entire lives prior to the parties' separation. They likely had strong bonds with those siblings. On the other hand, they had just recently met Walker's children who would be living with them at Fields' residence. In addition, the children had been placed with their mother following the parties' separation, and Richards' indicated that Fields did not make an effort to set up visitation with the children prior to the May 9, 2005 hearing.

Furthermore, in considering and giving substantial weight to the fact that Fields is retired while Richards works, the judge did not inquire into how much time each parent would actually spend with the children on a daily basis or to any childcare arrangements that Richards would make. When the trial judge asked Fields if he worked outside the home, his response was "[n]ot yet," but the judge did not elicit further information; she simply concluded that because Fields is retired, he is "better able to be a full-time parent." A full plenary hearing would have served to clarify these issues and to ensure that the custody determination serves the best interests of the children.

The September 23, 2005 hearing was also flawed, principally as a result of the judge's disqualification of Richards' attorney. The judge provided the following explanation for removing defendant's attorney on September 9, 2005:

After permitting counsel to review certification issues with her client and due to the lack of modification in the papers submitted, [defendant's attorney] has now become a fact witness in this case. Due to concerns about the attorney-client privilege which may have been waived and the conflicts of interest concern, the defendant needs to acquire new counsel or decide to proceed pro se.

The certification at issue was filed by counsel on June 19, 2005 in support of an order to show cause as to why the children's visitation with Fields should not be stopped. In that certification, counsel explained that Richards informed her of Shaakira's allegation of abuse against Fields' paramour. She also explained that Fields was no longer living at 754 Bergen Street in Newark, as evidenced by the children's disclosures and the fact that when the attorney sent an investigator to that address to see whether she could serve Fields with the order to show cause, he was no longer at that residence. Counsel further certified that Richards tried to reach Fields on Friday, June 17, to tell him that the children would not be coming for parenting time but was unable to reach him because his phone was not working; Fields made no attempt to contact Richards on Saturday, June 18, regarding visitation.

In reviewing the certification, we are at a loss to understand what aspect the judge found troubling or why she determined that counsel had become a fact witness and had to be removed as counsel. The attorney clearly did not commit any client confidentiality violations in her certification because Richards had already submitted her own statement to the court, which contained information similar to that provided by the attorney. Moreover, the judge's statement that the attorney had become a fact witness is not supported by the record, as there was no indication that she would ever be needed or used as such. See State v. Alfano, 305 N.J. Super. 178, 189-90 (App. Div. 1997) (holding pretrial decision to disqualify assistant prosecutor as trial counsel was improper exercise of discretion as it was premature to conclude his testimony would be needed at trial). Our courts have stressed that disqualification of counsel is a "harsh remedy" that should be used sparingly. Cavallaro v. Jamco Prop. Mgmt., 334 N.J. Super. 557, 572 (App. Div. 2000). The drastic action of attorney disqualification was simply not warranted here.

In any event, the issue of whether the judge erred in removing counsel has already been decided by our November 16, 2005 order in which we granted Richards' motion to reinstate her attorney. Thus, the issue that remains is whether the judge's action in removing counsel renders the September 23, 2005 hearing infirm.

Under the circumstances, it is clear that removing defendant's counsel was clearly capable of producing an unjust result. R. 2:10-2. While Fields had decided to proceed pro se, Richards had obtained counsel to assist her in the custody matter. She reiterated her desire for counsel during the September 23, 2005 hearing. When asked if there was anything else she wanted to tell the court, Richards responded, "I would like to get an attorney because I don't know much about the legal stuff." The judge dismissed her request, responding that she had been given some time to obtain an attorney. However, given the extensive history of the case and the fact that Richards was indigent, we may reasonably conclude that it was not feasible for her to find a new attorney willing to take her case in just two weeks. As defendant notes in her brief, she "did not choose to proceed pro se"; "the [c]ourt chose that avenue for her."

Further, the result of the hearing may have been different if Richards had been represented. Although the judge called a DYFS worker to testify, she did not allow the parties to cross-examine the witness; Richards' counsel would certainly have done so on her behalf. Although Richards was given an opportunity to briefly cross-examine Walker, it was clear that she did not understand the proper procedure for questioning a witness and would have greatly benefited from the assistance of counsel.

As we explained in Luedtke, supra, 342 N.J. Super. at 214, "where . . . 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." Here, the children's best interests were not served by having Richards appear pro se when she did not knowingly and intelligently decide to do so. Ibid. The removal of defendant's counsel, which left her without representation, was clearly capable of producing an unjust result and did not further the best interests of the children.

In addition, defendant argues that the September 23, 2005 hearing lacked the prerequisites for a fair hearing in other respects. Specifically, defendant takes issue with the fact that the court heard testimony from Fields before her arrival, did not allow the parties to cross-examine the DYFS worker, unfairly scolded her for not allowing visitation over the summer following the abuse allegation, interviewed Wydeia off-the-record, and ignored some of the testimony from Malachi and Shaakira. We agree.

The September 23, 2005 hearing suffered from many of the same procedural deficiencies as the May 9, 2005 proceeding and did not constitute a proper plenary hearing. First, the court questioned Fields fairly extensively about matters that were highly relevant to the custody proceeding before Richards arrived. Richards arrived late and was scolded by the court, even though she explained that her babysitter had canceled and she had called the court to indicate that she would be late. In any event, even if Richards were at fault, the children's best interests were not served by taking testimony relevant to the proceedings outside of her presence. Since Richards was unaware of the content of Fields' discussion with the court prior to her arrival, she was unable to provide a response or to cross-examine him regarding those matters.

The judge called a DYFS worker, Janet Evans, to testify regarding the June 2005 allegations of child abuse against Fields and Walker. Evans testified that DYFS investigated the incident and found the claims to be baseless; the case was subsequently closed. Although the judge relied on that testimony to conclude that the children would not be in danger if placed with Fields, she did not give either party the opportunity to cross-examine Evans regarding the DYFS investigation. We have repeatedly held that, in custody cases, it is improper for a trial court to render a decision in reliance on an expert opinion without a plenary hearing that allows the parties to examine the expert. Entress, supra, 376 N.J. Super. at 128-33; Luedtke, supra, 342 N.J. Super. at 215. Reliance on a DYFS worker's testimony regarding an issue as important as child abuse should be treated in a similar manner.

The judge interviewed Wydeia in chambers, presumably regarding her sexual abuse allegation against Fields and Shaakira's physical abuse allegation, but that interview was not recorded. The judge did not state any findings regarding Wydeia's testimony, other than mentioning that she had made serious allegations that were never substantiated. The parties were not provided with a record of Wydeia's testimony or given an opportunity to respond.

The judge also interviewed Malachi and Shaakira in chambers, on the record. In rendering her oral decision, the judge stated that she believed Richards was less credible than Fields and was "coaching these children to say certain things." Although we must take into account the findings of the trial judge, who had the opportunity to obtain the "feel of the case" and assess witness credibility, it remains our duty to determine whether there was a "'manifest denial or miscarriage of justice.'" Dolson v. Anastasia, 55 N.J. 2, 7 (1969) (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 459-60 (1962) (Weintraub, C.J., Jacobs, J., and Francis, J., dissenting)). Here, the interview with the children does not support the trial judge's findings regarding Richards' credibility. For example, the judge asked Malachi whether his mom told him that "it's a good idea that [he] be with her," and he responded "no." Moreover, both children substantiated Richards' claim of domestic abuse against Fields, as they recalled seeing their father hit their mother with a phone. The judge then asked Shaakira if her mother "helped [her] remember it," and she responded "no" and indicated that she remembered it herself. Thus, the judge's suspicion that Richards was coaching the children was not confirmed.

Due to the numerous factual disputes that we have identified, the matter is remanded for a full plenary hearing, in which both parties are given an opportunity to cross-examine the witnesses relied upon by the court.

Lastly, defendant argues that this custody matter was heard in violation of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), N.J.S.A. 2A:34-53 to -95, because New York was the more appropriate forum for the action. We disagree.

The UCCJEA provides, in pertinent part, that a New Jersey court has jurisdiction to make an initial child custody determination only if:

(1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as parent continues to live in this State;

(2) a court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum . . . and

(a) the child and the child's parents, or the child and at least one parent or a person acting as a parent have a significant connection with this State other than mere physical presence; and

(b) substantial evidence is available in this State concerning the child's care protection, training and personal relationships; . . .

[N.J.S.A. 2A:34-65.]

The Act defines "home state" as "the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding." N.J.S.A. 2A:34-54.

Here, the initial custody determination was made on July 20, 2004 by our Family Part. The determination followed Richards' filing of a petition for a TRO against Fields, resulting in the judge granting Richards temporary physical custody of the children. At that time, Fields was living at 754 Bergen Street in Newark, the residence the parties' had shared since their move to New Jersey in 2001. Richards had been temporarily living at a Battered Women's Shelter in Queens, New York since June 2004. She moved to an apartment in Brooklyn with her children following the July 20, 2004 hearing. In September 2004, a best interest report was completed, and the second judge ruled that custody of the children would remain with Richards. Since the children lived in New Jersey within six months before the July and September 2004 proceedings and Fields continues to live in New Jersey, the courts of this State had jurisdiction to make the initial custody determination.

Indeed, defendant does not dispute that New Jersey had jurisdiction to entertain this action; rather, she contends that it was not the more convenient forum and that New York is now the appropriate forum because the children reside and attend school in New York. However, as explained in Bless v. Bless, 318 N.J. Super. 90 (App. Div. 1998), "'a state does not automatically lose jurisdiction over custody when it is no longer the home state, if one parent remains resident in that state, the child has significant contact with the state, there is substantial relevant evidence available in the state, and it is in the child's best interest for that state to make the determination.'" Id. at 102 (quoting Ganz v. Rust, 299 N.J. Super. 324, 333 (App. Div. 1997)).

Here, although the children have been living with their mother in Brooklyn since July 2004, Fields remains in New Jersey and the children have significant contacts with this State, as they lived here for a substantial amount of time prior to moving to Brooklyn and continue to visit their father here. Additionally, New Jersey contains substantial relevant evidence for the proceedings, as home investigations, a best interest report, and a DYFS investigation of child abuse occurred here.

Finally, we regrettably conclude that on remand the matter should be heard by a different Family Part judge than the one that presided over the May 9 and September 23 hearings. We do not question the judge's commitment to do what is best for the children, but conclude that due to her extensive prior involvement in the case it may be difficult for her to set aside prior conclusions and make completely new fact-findings. In Luedtke, supra, 342 N.J. Super. at 219, we stated that, "[e]ven if the [trial] court could perform the 'mental gymnastics' required to set aside its earlier decision, the appearance of justice would be better served if the matter were reassigned." Likewise, the appearance of a fair hearing would be best served in this case by the assignment of a different trial judge. See Entress, supra, 376 N.J. Super. at 133 (remanding for plenary hearing with new judge in order to "avoid the appearance of bias or prejudice based upon the judge's prior involvement with the matter and his expressions of frustration with plaintiff"); P.T. v. M.S., 325 N.J. Super. 193, 220 (App. Div. 1999) (explaining appellate court has authority to direct on remand that different judge consider matter in order to preserve appearance of fair and unprejudiced hearing and concluding that further proceedings in case require "fresh judicial examination").

Reversed and remanded for a plenary hearing consistent with the views expressed in this opinion.

 

Defendant's certification indicates that the parties moved to New Jersey in 2003. Her attorney's certification, however, states that the parties relocated to New Jersey in 2001. Defendant's brief also references a 2000 or 2001 relocation.

Wydeia's testimony took place off the record.

The children seemed to be confused at times regarding who the judge was referring to when she asked them about "daddy." Malachi told the court that his "daddy" was Patrick James and that Barry Fields was his "father." James is the man Richards resides with and the father of her youngest child. Nonetheless, the judge continued to ask the children about "daddy" when she was referring to Fields.

Defendant's brief indicates that the matter was dismissed because Fields did not show up for the hearing. The order of dismissal, however, indicates that both parties appeared, and Fields' allegation was found to be unsubstantiated.

The judge's ruling on the final restraining order is not found in the record. We have taken this statement from defendant's brief.

The trial judge did in fact ask Fields where he resided, and Fields confirmed that he lived on Bergen Street. The Bergen Street address is the three-bedroom apartment referenced in the best interest report.

The only finding made by the judge regarding "the interaction and relationship of the child with its parents and siblings" is that, based on the DYFS reports, there does not seem to be difficulty between the children and their father.

Bless was decided under the Uniform Child Custody Jurisdiction Act (UCCJA), which was repealed in 2004 when the current UCCJEA took effect. The definition of "home state" under both Acts is substantially the same. Poluhovich v. Pellerano, 373 N.J. Super. 319, 356 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005).

(continued)

(continued)

28

A-5507-04T4

RECORD IMPOUNDED

May 15, 2006