DEBORAH HATKINS v. JORGE HERNANDEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1564-08T41564-08T4

DEBORAH HATKINS,

Plaintiff-Appellant,

v.

JORGE HERNANDEZ,

Defendant-Respondent,

and

DARLENE BONILLA,

Defendant.

_______________________________________

Argued March 22, 2010 - Decided May 5, 2010

Before Judges Reisner, Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FD-02-1017-07.

Valerie D. Solimano argued the cause for appellant (Heimbuch & Solimano, P.C., attorneys; Ms. Solimano, of counsel; Ms. Solimano and Joanne Nowicki, on the brief).

Geri Landau Squire argued the cause for respondent.

PER CURIAM

Plaintiff Deborah J. Hatkins appeals from an order entered by the Family Part on August 22, 2008, as amended by an order of August 29, 2008, which awarded defendant Jorge Hernandez sole legal and residential custody of two minor children, M.H. and T.H. We affirm.

I.

The following facts are pertinent to our decision. Between 1996 and 1998, defendant and Darlene Bonilla (Bonilla) were involved in a romantic relationship. Bonilla ultimately became pregnant and she gave birth to twins, M.H. and T.H. Defendant is the children's biological father. Plaintiff and defendant met in March 1999 and soon were living together in plaintiff's home. At the time, M.H. and T.H. were residing with Bonilla. From July 1999 through June 2000, defendant exercised parenting time with the children three or four times per week at plaintiff's home.

In June 2000, Bonilla disappeared with the children. Defendant filed an abduction report with the police but did not pursue the matter further. In late October or early November 2000, defendant was told that Bonilla was living in Florida. He later learned that the children had been placed in foster care in Florida. It appears that Bonilla had been drinking heavily and left the children unattended. The children were found wandering in a parking lot, partially dressed, without shoes and with sores on their feet.

The children remained in foster care until June 29, 2001, when a Florida court granted defendant custody of the children. Bonilla was subsequently ordered to have no contact with the children, but her parental rights were not terminated. Defendant and plaintiff brought the children back to New Jersey, and they resided with the parties in plaintiff's home in Haworth.

In March 2004, plaintiff and defendant ended their relationship and defendant moved out of plaintiff's home. Defendant agreed, however, that the children could remain with plaintiff because she had been a good provider and he did not want the children to be moved again at that time. Over the next three years, plaintiff assumed virtually all responsibility for the day-to-day care of the children.

In 2004, defendant began working as a teacher in New York City and in July 2006, he married C.W. After the marriage, defendant exercised parenting time with the children every other weekend in C.W.'s home in New York State. In 2007, defendant informed plaintiff that he was going to take the children to reside with him after they completed the 2006-2007 school year.

On March 30, 2007, plaintiff filed this action against defendant and Bonilla seeking joint legal and sole residential custody of the children. After defendant received notice of this lawsuit, he refused to return the children to plaintiff following a weekend visit.

On April 17, 2007, on plaintiff's application, the court entered an order that required the immediate return of the children to plaintiff; designated plaintiff as the children's primary residential custodian and temporary sole legal guardian; and suspended defendant's parenting time. The court subsequently entered an order dated May 4, 2007, which named plaintiff as parent of primary residence and provided defendant with parenting time.

Defendant filed an answer and counterclaim in which he sought sole legal and residential custody of the children. Bonilla filed an appearance in order to be heard on the issue of parenting time and her reintroduction to the children. The court also appointed Marcia Werner (Werner) to act as guardian ad litem for the children.

On June 27, 2008, following a six-day hearing, the trial court ruled that plaintiff was a psychological parent to the children. Defendant has not challenged that decision. The court thereafter conducted a trial on the custody issues, at which the parties testified and presented testimony from fact and expert witnesses.

II.

On August 22, 2008, the trial court filed an opinion in which it concluded that defendant should be awarded sole legal and residential custody of the children, with plaintiff having visitation on alternating weekends. The trial court reviewed the factors in N.J.S.A. 9:2-4(c), and made detailed findings as to those factors that had particular relevance to this dispute.

The court found that the ability of plaintiff and defendant to communicate and agree regarding the care of the children was minimal. The court also found that plaintiff and defendant had differing parenting styles. The court noted that plaintiff was more detailed and organized, while defendant had a "hands off approach[.]" The court additionally noted that plaintiff was more controlling and domineering and it had "no confidence" that she would be able to modify her behavior so that a joint legal custody arrangement would be viable.

The court further found that the children were bonded with both of the parties. It pointed out that the children had expressed a desire to spend more time with defendant but he had previously required them to side with him in his dispute with plaintiff and had engaged in behavior designed to alienate the children from plaintiff. The court also pointed out that both plaintiff and defendant were capable of meeting the housing, educational and medical needs of the children.

In addition, the court found that plaintiff had assumed primary care responsibility for the children since 2004 and had fulfilled that role in an exemplary manner. The court commented that although defendant had been "disengaged" in the day-to-day care for the children and had deferred primary care responsibility to plaintiff, defendant had never abandoned the children. The court found that defendant had maintained sufficient contact with the children and they were bonded to him.

The court additionally found that plaintiff could continue to provide the children with a stable home environment, and defendant and C.W. appeared to have a strong relationship and stable home environment. The court noted that defendant never sought physical custody of the children prior to his marriage to C.W. The court also stated that the children were eleven years of age and were entitled to the "care and comfort" of both parties and, above all, "repose."

The court further found that the children would not suffer more harm if custody were transferred to defendant because: the children were bonded to defendant; defendant was willing to allow plaintiff to have extensive parenting time with the children; the court would require that defendant permit the children to have parenting time with plaintiff; defendant is capable of caring for the children; the children had already adapted to spending a significant amount of time with defendant and C.W.; and therapy could address any anxiety the children may experience as a result of a change of custody.

The court noted that it had considered the fact that Bonilla's parental rights to the children had not been terminated. The court stated that, if it were to grant plaintiff joint legal custody of the children, "there would be, in effect, a third party who could later seek input in the future care of the [c]hildren." The court said that difficulties already exist between the parties and the prospect that a third party would seek to participate in decisions involving the children would be "a major concern[.]"

The court added that if the children were left in plaintiff's care and custody, it would lead to more acrimony and the children would not find repose in the situation. The court found that joint legal custody was not feasible. The court stated that, because the parties had different parenting styles, they could not exercise joint legal custody as contemplated by the statute.

The court additionally stated that Bonilla intended to move to New Jersey and exercise parenting time with the children. The court said that it was concerned that if it were to grant joint legal custody to plaintiff and defendant, "it would be introducing a three party or 'troika' custody which is not feasible." The court also said that, "[i]t is clearly more likely that [defendant] and Bonilla will be able to work together than a share[d] parenting arrangement involving [p]laintiff, [defendant] and Bonilla."

The trial court filed an order dated August 22, 2008, memorializing the findings and conclusions in its opinion. Thereafter, the court filed an amended order dated August 29, 2008, which permitted plaintiff to retain custody of the children through that date; established a parenting schedule for plaintiff on alternating weekends; and provided that a parenting coordinator would conduct discussions with the parties regarding the parenting schedule and other issues. The court also ordered the parenting coordinator to develop a plan for the reintroduction of the children to Bonilla. The court entered another order dated August 29, 2008, denying plaintiff's motion for a stay pending appeal.

Because the trial court had not resolved defendant's motion for counsel fees, plaintiff filed a motion for leave to appeal the trial court's August 22, 2008, and August 29, 2008 orders. We granted the motion. We also denied plaintiff's motion for a stay of the trial court's orders pending appeal. Thereafter, the trial court denied defendant's motion for counsel fees. Plaintiff then filed a notice of appeal from the trial court's orders.

III.

On this appeal, plaintiff argues that: 1) the trial court's findings of fact are not entitled to deference because the court applied the wrong legal standard; 2) the trial court erred because it failed to articulate why transfer of physical custody of the children from plaintiff to defendant was in the children's best interest; 3) the trial court erroneously utilized a "least detrimental harm" analysis rather than the "best interest" standard, as required by V.C. v. M.J.B., 163 N.J. 200, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000); 4) the trial court failed to give any weight to the testimony of the guardian ad litem; and 5) the trial court improperly abdicated its judicial responsibility to the parenting coordinator.

Having thoroughly reviewed the record in light of these contentions, we conclude that plaintiff's contentions are without merit. We therefore affirm substantially for the reasons stated by Judge William DeLorenzo in his thorough and comprehensive written opinion dated August 22, 2008. We add the following comments.

We will not disturb the factual findings of a trial judge unless we are convinced that the findings "'are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Our deference to the trial court's factual findings is especially appropriate in cases, such as this case, where "'the evidence is largely testimonial and involves questions of credibility.'" Ibid. (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).

N.J.S.A. 9:2-4(c) provides in pertinent part that, when a court renders a custody determination, the court must consider, among other things:

[1] the parents' ability to agree, communicate and cooperate in matters relating to the child; [2] the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; [3] the interaction and relationship of the child with its parents and siblings; [4] the history of domestic violence, if any; [5] the safety of the child and the safety of either parent from physical abuse by the other parent; [6] the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; [7] the needs of the child; [8] the stability of the home environment offered; [9] the quality and continuity of the child's education; [10] the fitness of the parents; [11] the geographical proximity of the parents' homes; [12] the extent and quality of the time spent with the child prior to or subsequent to the separation; [13] the parents' employment responsibilities; and [14] the age and number of the children.

In addition to the foregoing, a court also must take into account the "primary and overarching consideration[,]" which is the best interest of the child. Kinsella v. Kinsella, 150 N.J. 276, 317 (1997).

Where, as here, a third party has been determined to be the psychological parent of a child, he or she stands "in parity" with the legal parent for purposes of the best interest analysis. V.C., supra, 163 N.J. at 227 (citing Zach v. Fiebert, 235 N.J. Super. 424, 432 (App. Div. 1989)). However, while a court may not give an "absolute preference" to a natural parent, it may still consider a party's status as a biological parent as an additional factor in the best interest analysis. Id. at 228 (quoting Todd v. Sheridan, 268 N.J. Super. 387, 399 (App. Div. 1993)). When the "evidence concerning the child's best interests (as between a legal parent and psychological parent) is in equipoise, custody will be awarded to the legal parent." V.C., supra, 163 N.J. at 228.

We are convinced that there is sufficient credible evidence in the record to support the trial court's findings of fact and conclusions of law in this matter. In our judgment, the record fully supports the court's determination that the transfer of custody to defendant would best provide the children with the "repose" they require, which would not be the case if they remained with plaintiff.

We are additionally satisfied that the record provides ample support for the court's determination that in view of the differing parenting styles of plaintiff and defendant, joint legal custody of the children would not be feasible. We are further satisfied that the evidence established a factual basis for the court's finding that Bonilla is likely to be reintroduced to the children at some point in the future and defendant would be better able than plaintiff to facilitate a positive relationship between Bonilla and the children.

Plaintiff argues that the trial court erroneously failed to undertake a "best interest" analysis and reviewed the matter under a "least detrimental harm" standard. We disagree. Although the court considered whether the children would be harmed if defendant were awarded custody, the court did so in the context of his determination of whether award of custody to defendant would be in the children's best interest.

As we indicated previously, the factors identified in N.J.S.A. 9:2-4(c) are not intended to be exclusive. The best interest analysis requires the court "to consider any and all material evidence." Kinsella, supra, 150 N.J. at 317 (citing In re Baby M., 109 N.J. 396, 456 (1988)). Under the particular circumstances presented in this case, we find no error in the court's consideration of whether the children would be harmed if they were removed from plaintiff's care and custody awarded to defendant.

Plaintiff also argues that the trial court erred by failing to take Werner's views into consideration in rendering its custody decision. Werner had recommended that the children remain with plaintiff, with defendant being afforded parenting time that would increase over time. When the trial court considered plaintiff's motion for a stay pending appeal, it noted that Werner's views regarding a transfer of custody had been helpful but, as we have indicated, the court ultimately determined that a change in custody was warranted. Thus, the court did take Werner's views into consideration. The court was not, however, required to follow her recommendations.

Plaintiff further argues that the trial court improperly abdicated its judicial responsibility to the parenting coordinator. Again, we disagree. The court's order of August 29, 2008, stated in pertinent part that the parties shall

engage in good faith discussions [with the parenting coordinator] relating to the parenting time schedule as may be appropriate and such other issues as may be required or desirable including, but not limited to, improving their communication skills and whether therapy is appropriate and necessary for the parties or the [c]hildren; the Parenting Coordinator shall also develop with the parties a plan for reintroduction for the [c]hildren and Defendant Bonilla . . .

This provision of the August 29, 2008, order is clearly not an abdication of the court's responsibility in the matter. Nothing in the court's order precludes the parties from returning to the trial court if they cannot agree on the parenting time schedule or any of the other issues that the parties were ordered to discuss, or if the parties object to the coordinator's plan for reintroduction of Bonilla to the children.

We have considered the other contentions raised by plaintiff and find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

(continued)

(continued)

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A-1564-08T4

RECORD IMPOUNDED