ANTONIO VOCISANO v. CATHERINE REYNOLDS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ANTONIO VOCISANO,

Plaintiff-Appellant,

v.

CATHERINE REYNOLDS,

Defendant-Respondent.

___________________________

October 28, 2014

Submitted September 29, 2014 Decided

Before Judges Simonelli and Leone.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FD-18-0526-12.

Randall J. Peach, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

In this custody dispute, plaintiff Antonio Vocisano appeals from the March 5, 2013 Family Part order, which denied his application for sole legal and physical custody of a child he had with defendant Catherine Reynolds. We reverse and remand for further proceedings.

We derive the following facts from the record. Plaintiff and defendant both sought sole legal and physical custody of the child. Pursuant to a July 24, 2012 order, the parties appeared for a custody hearing. However, at the conclusion of the hearing, the judge did not make a best interests determination, but instead, stated as follows

I am going to order the 50-50 parenting time schedule. All right? If it doesn't work, you can come back. And, most likely, if it doesn't work, what we're going to do is order an evaluation and, most likely, we'll go from there with a full-blown custody evaluation and plenary hearing on who . . . will obtain primary residential custody and how that will work going forward.

In a July 27, 2012 order, the judge acknowledged that the custody issue remained unresolved, but granted the parties joint custody with neither party designated as the parent of primary residence. The judge also permitted either party to request a best interests evaluation if custody remained an issue. Because custody remained an issue, the judge subsequently ordered a best interests evaluation and a plenary hearing to be held following completion of the evaluation.

The best interests evaluation was completed and the parties appeared for a plenary hearing. Noting that the July 27, 2012 order had granted the parties joint custody, the judge considered the matter as plaintiff's request to modify custody. In a March 5, 2013 order, the judge denied plaintiff sole legal and physical custody for failure to show changed circumstances, and granted the parties joint custody. We agree with plaintiff that this was error.

Our scope of review of child custody determinations is limited. The conclusions of trial judges regarding child custody are "entitled to great weight and will not be lightly disturbed on appeal." Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div.), certif. denied, 28 N.J. 147 (1958). However, a "trial judge's findings are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002). In this case, the judge applied the wrong legal principle in denying plaintiff sole legal and physical custody of the child.

Custody disputes are resolved using a best interests analysis. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). In making a custody determination, the judge must consider the following factors

the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child's education; the fitness of the parents; the geographical proximity of the parents' homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents' employment responsibilities; and the age and number of the children. A parent shall not be deemed unfit unless the parents' conduct has a substantial adverse effect on the child.

[N.J.S.A. 9:2-4.]

The judge must also articulate reasons for a custody determination and refer specifically to the pertinent statutory criteria and generally to the statutory scheme. Kinsella v. Kinsella, 150 N.J. 276 317 (1997); Terry v. Terry, 270 N.J. Super. 105, 119 (App. Div. 1994).

Once a best interests determination has been made and a custody judgment has been entered, a party seeking a modification "must demonstrate changed circumstances that affect the welfare of the children." Hand, supra, 391 N.J. Super. at 105. This is because "[a] judgment, whether reached by consent or adjudication, embodies a best interests determination." Todd v. Sheridan, 268 N.J. Super. 387, 398 (App. Div. 1993). Thus, "[i]t is only when such a [best interests] determination has been made and a judgment entered that a moving party must bear the threshold burden of showing changed circumstances which would affect the welfare of the children." Ibid.

Here, there was no best interests determination, articulation of reasons, or final custody judgment. The July 27, 2012 order merely established a temporary custody arrangement with the custody dispute remaining unresolved and subject to a best interests evaluation and plenary hearing. Accordingly, we reverse the March 5, 2013 order, and remand for a plenary hearing, best interests determination, and articulation of reasons for the custody determination, referring specifically to the pertinent statutory criteria and generally to the statutory scheme.

We make these further comments. Plaintiff argues on appeal that the judge erred by failing to utilize the best interests evaluation, interview the child, and articulate reasons for not conducting an interview. The record does not indicate that either party requested an interview. Absent a litigant's request for a child interview, Rule 5:8-6 does not require judges to conduct an interview or articulate reasons for not doing so. In addition, judges are not required to utilize the best interests evaluation in making a custody determination. See R. 5:8-6. Rather, the judge need only adhere to the best interests of the child standard. See N.J.S.A. 9:2-4.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.