YVETTE JOHNSON v. LEONARD MACK

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4669-10T3

YVETTE JOHNSON,

Plaintiff-Appellant,

v.

LEONARD MACK,

Defendant-Respondent.

________________________________________________________

March 13, 2012

Submitted February 8, 2012 - Decided

Before Judges Fuentes, Graves and Harris.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Union County,

Docket No. FD-20-001297-11.

Dulinski & Backmann, LLP, attorneys for

appellant (Jeanette E. Backmann, on the

brief).

Respondent has not filed a brief.

PER CURIAM

Plaintiff Yvette Johnson and defendant Leonard Mack are the parents of Allison,1 who is now seventeen years old. The parties never married, and plaintiff had custody of Allison since she was born. Plaintiff appeals from an order dated February 17, 2011, which allowed Allison to reside with either her mother or her maternal grandmother, and an order entered on April 28, 2011, denying plaintiff's motion for reconsideration. Among other things, plaintiff contends that her right to due process was violated because the child's maternal grandmother was not a party to the action, and the court failed to conduct a proper evidentiary hearing. Plaintiff also contends that the court failed to conduct a best-interests-of-the-child analysis and failed to make adequate findings to justify its custody determination. We reverse and remand for further proceedings.

On January 24, 2011, when she was a junior in high school, Allison went to her father's residence in Brooklyn, New York, and refused to return to her home in Plainfield where she resided with her mother, stepfather, and siblings. At that time, Allison was a member of the National Honor Society, a class officer, and the number one student in her class.

Plaintiff filed for custody on January 26, 2011, and defendant counterclaimed for residential custody. In his counterclaim, defendant stated: "[Allison] suffers verbal abuse and threats from her stepfather. The mother has left the child rearing up to him. My daughter wants to live with me."

The parties appeared in court on February 17, 2011. During an informal hearing, plaintiff expressed her desire to have her daughter returned to her care and custody. Plaintiff also indicated that she wanted the family to participate in counseling to deal with "regular family problems" because Allison believed that she should not "have to do chores or . . . watch her brother and sister." Defendant, on the other hand, withdrew his request for custody. He informed the court that Allison would prefer to live with her maternal grandmother in Plainfield because Allison did not want to transfer to a different high school.

With the parties' consent, the court then interviewed Allison in chambers. During the interview, Allison confirmed that she wanted to reside with her maternal grandmother:

So I'm staying with my . . . grandmother and I'll just continue in school. But it's like I just don't like the way they treat me. Like, they're always hollering at me. They don't listen to me. My stepfather, he says stuff like, "I'll kick you out of bed."

Q. Uh-huh.

A. Or, "I'll smack you."

Q. Uh-huh.

A. Or, like one time we were in the kitchen, and he was yelling at me about something, and then he was, like, "Oh, I'll beat you like a dude in the street," or something like that.

After speaking with Allison, the court asked the parties if they agreed that Allison could reside with her maternal grandmother. Although defendant agreed, plaintiff stated she did not agree because her mother is "very lenient" and "doesn't know how to say no to her grandkids."

Despite plaintiff's concerns, the court determined that Allison could decide whether she resided with her mother or her maternal grandmother:

I think . . . I got the picture.

And what I'm going to do is I'm going to continue joint-legal custody [with] both parents, [and] simply rule that [Allison] can live either at her mother's house or her grandmother's house. The choice will be up to her.

Now you can work with her and you can say, "[Allison], I'd like you to come home." And if she wants to come home, she's open. If she wants to go and live with Mr. Mack, I don't think that's in the cards.

The court memorialized its decision in an order dated February 17, 2011.

Plaintiff filed a motion for reconsideration, which was heard on April 28, 2011. In a supporting certification, plaintiff stated there was "no basis for a change in custody," and it was unreasonable to allow Allison "to determine where she lives and with whom she resides." In addition, plaintiff's attorney argued it was "a miscarriage of justice" for the court to sua sponte award residential custody to the maternal grandmother who "never applied for custody, did not appear before the court, was not interviewed," and never "even indicated that she would accept the child in her home."

Plaintiff's motion for reconsideration was unopposed. Nevertheless, the court found that its initial decision seemed "to suit the circumstances," and it denied plaintiff's reconsideration motion. This appeal followed.

Plaintiff argues on appeal, as she did in her motion for reconsideration, that the trial court violated her due process rights and further erred in awarding custody to the maternal grandmother. We concur.

At a minimum, "due process of law" includes "reasonable notice of the nature of the proceedings and a fair opportunity to be heard." Fantony v. Fantony, 36 N.J. Super. 375, 378 (Ch. Div. 1955), modified, 21 N.J. 525 (1956). That is precisely what plaintiff did not receive in this case. Because the maternal grandmother was not a party to the action, and she did not participate in the custody hearing on February 17, 2011, plaintiff was not on notice that residential custody could be awarded to the maternal grandmother. Moreover, the informal proceeding conducted by the court which did not afford plaintiff an opportunity to cross-examine defendant or to submit questions to the court prior to the in-chambers interview2 violated plaintiff's right to be heard in a meaningful manner. See Doe v. Poritz, 142 N.J. 1, 106 (1995) ("Fundamentally, due process requires an opportunity to be heard at a meaningful time and in a meaningful manner.").

The "paramount consideration" in every custody determination is "the safety, happiness, physical, mental and moral welfare of the child." Fantony, supra, 21 N.J. at 536. "Custody issues are resolved using a best interests analysis that gives weight to the factors set forth in N.J.S.A. 9:2-4(c)." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). That statute allows the court to make any custody arrangement that is "in the best interests of the child." N.J.S.A. 9:2-4(c). The same statute requires a judge to consider and weigh a number of factors before making a custody determination, including "the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision." In addition, the court must specifically state the statutory factors "which justify any custody arrangement not agreed to by both parents." N.J.S.A. 9:2-4(f). Unfortunately, that did not happen here. Instead of making a custody determination based on an assessment of the statutory factors, the trial court abdicated its parens patriae responsibility by allowing the child to decide with whom she lives.

In view of the foregoing, the orders entered on February 17, 2011 and April 28, 2011, are reversed and the matter is remanded to the Family Part for further proceedings consistent with this opinion. We direct that the proceedings be completed expeditiously.

Reversed and remanded. Jurisdiction is not retained.

1 We have used a pseudonym to protect the child's privacy.

2 Pursuant to Rule 5:8-6, when a court elects to interview a child, it must "afford counsel the opportunity to submit questions for the court's use during the interview and shall place on the record its reasons for not asking any questions thus submitted."