(NOTE: The status of this decision is Published.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-1326-17T2
Plaintiff-Appellant, APPROVED FOR PUBLICATION
January 2, 2019
Argued December 5, 2018 – Decided January 2, 2019
Before Judges Koblitz, Ostrer and Mayer.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Warren County,
Docket No. FD-21-0329-14.
Grace E. Kelly argued the cause for appellant (Legal
Services of Northwest Jersey, attorneys; Grace E.
Kelly, on the brief).
Respondent has not filed a brief.
The opinion of the court was delivered by
Because the welfare of children is paramount whether the parents are
married, divorced or never-married, we reverse and remand for a plenary hearing
in this non-dissolution, FD, child custody matter. The mother, J.G. (Jane) 1
appeals from a custody and parenting time order entered after the judge denied
discovery, denied Jane's lawyer the right to participate in the proceedings, did
not afford cross-examination or an opportunity to call witnesses and decided the
issues without fact-finding or a consideration of the statutory custody factors,
When J.H. (John) was born in 2012, his parents were not married. Jane is
a school teacher and J.H. (Joseph) an aid for special needs students. In 2014, an
FD order reflected the parents' consent to joint legal custody of their son,
primary residential custody with Jane, and generous parenting time for Joseph.
The following year, the consent order was vacated because the parents attempted
to reconcile. John continued to reside primarily with Jane, and the parents
agreed on a flexible shared-parenting-time schedule.
The relationship between the parties eventually deteriorated, and Jane
pursued a new relationship. She is now pregnant. Joseph alleges that on October
3, 2017, John was left alone with Jane's fiancé, who Joseph claims is a "well
known drug user" and "convicted felon with multiple prison sentences."
We use initials and pseudonyms to preserve the confidentiality of the family.
The next day, Joseph filed an order to show cause under the original FD
docket number, seeking sole custody of John. As part of Joseph's emergent
application, he alleged having received many reports of misbehavior by Jane
and her fiancé, including drug usage and threatening behavior.
The court denied Joseph's order to show cause because Joseph failed to
demonstrate irreparable or "actual imminent threat of harm to [John]." The court
stated it "cannot grant emergent custody based on . . . uncorroborated statements
. . . limited evidence . . . and such speculative harm." Nonetheless, it awarded
Joseph temporary sole physical custody of John pending resolution of the
application because "[t]here appears to be potential for violence in [Jane]'s
home, which could spill over and adversely affect a four-year-old child." 2 The
order provided that Jane could arrange for parenting time "supervised by the
maternal grandmother" at a location outside of Jane's home.
Jane filed an order to show cause, alleging that John was suffering harm
by his abrupt separation from her. The judge denied Jane's order to show cause
as non-emergent, stating that "[w]hile [Jane] makes concerning certifications
about [Joseph], she has not alleged with specificity any imminent harm."
If "reasonable cause" regarding the child's safety arose, the judge should have
contacted the Division of Child Protection and Permanency. N.J.S.A. 9:6-8.10.
On October 24, 2017, Jane, her lawyer and Joseph appeared before another
judge for the return on Joseph's initial order to show cause. The hearing judge
placed both parties under oath and proceeded to go back and forth questioning
them in an attempt to establish the facts. The parties contradicted each other
about most of the important facts affecting John's welfare.
Jane's counsel, when afforded an opportunity to speak, requested the
matter be placed on the complex track, but was rebuffed:
[COUNSEL]: [I]n order for there to be a change of
custody we would ask that this case be put on the
complex track to allow for discovery --
THE COURT: It's a -- it's an FD matter.
[COUNSEL]: But if the court --
THE COURT: It's not a divorce.
[COUNSEL]: -- if the court were to put it on, it has the
option to put it on the complex track according to [Rule
5:5-7(c)3], then discovery would be available as well as
3 Rule 5:5-7(c) provides:
Non-Dissolution Actions. While non-dissolution
actions are presumed to be summary and non-complex,
at the first hearing following the filing of a non-
dissolution application, the court, on oral application by
a party or an attorney for a party, shall determine
whether the case should be placed on a complex track.
The court, in its discretion, also may make such a
depositions because I mean a lot of these accusations .
After denying the request to place the matter on the complex track, the
hearing judge responded to counsel's later attempt to speak on behalf of Jane by
stating, "I'm asking [Jane,] not you." The judge asked the parties what
arrangement they preferred, and when they could not agree, he set the parenting
The judge ordered joint legal and physical custody, with Joseph having
primary residential custody. John spent the night with his father Monday
through Friday, Jane was afforded parenting time with John after school Monday
through Thursday, and the parties were to alternate parenting time "every other
weekend."4 The judge also prohibited Jane's fiancé from being alone with John.
After Jane voiced concern about the disruption in her son's life caused by this
determination without an application from the parties.
The complex track shall be reserved for only
exceptional cases that cannot be heard in a summary
matter. The court may assign the case to the complex
track based only on a specific finding that discovery,
expert evaluations, extended trial time or another
material complexity requires such an assignment.
Contrary to the judge's verbal order, the written order provides that the "parties
shall share weekends, with [Jane] having at least one overnight visit with [John]
on the weekend."
change in primary residential custody, the motion judge said that John had
"already been uprooted." No further reasons were provided.
I. Pre-Hearing Requirements
As with other custody matters, prior to a plenary hearing, the parties
should have been sent to mediation, Rules 1:40-5 and 5:8-1, and, if they were
unable to resolve the issues, they should have been required to submit a Custody
and Parenting Time/Visitation Plan pursuant to N.J.S.A. 9:2-4(e), Rule 5:8-5(a)
and Luedtke v. Shobert (Luedtke), 342 N.J. Super. 202, 218 (App. Div. 2001).
The required procedures for custody and parenting time cases are outlined in
Administrative Directive #01-02, "Standards for Child Custody and Parenting
Time Investigation Reports" (Apr. 2, 2002), and include use of alternate dispute
resolution, followed by an investigation report when "conflicting information
from the parties make it difficult to make a determination in the best interest of
the child regarding custody/shared parenting time." A Social Investigation
Report should be ordered where "conflicting information regarding which parent
can serve the long term best interest of the child is presented before the court
but the psychological fitness of both parties is not in question." 5 Ibid.
"Completion of the Best Interest Report may require the assistance of Family
Court staff in a county other than the county where the orde[r] was entered."
Upon counsel's request to place the matter on the complex track, the judge
denied the request because "it's an FD matter. It's not a divorce." "Whether the
case is designated as complex or handled as a summary action, Family Part
judges have broad discretion to permit, deny, or limit discovery in accordance
with the circumstances of the individual case." Major v. Maguire, 224 N.J. 1,
24 (2016). For the judge to deny discovery without further explanation was
In sum, before a hearing took place, the parties should have been sent to
an alternate dispute resolution process and directed to furnish a proposed
parenting plan if they could not resolve custody. Discovery should have been
allowed, absent cogent reasons for denial. Finally, an investigative report
should have been prepared by court staff. The judge needed this information to
make a considered decision.
II. Plenary Hearing
A thorough plenary hearing is necessary in contested custody matters
where the parents make materially conflicting representations of fact. K.A.F. v.
D.L.M., 437 N.J. Super. 123, 137-38 (App. Div. 2014). In K.A.F. we said:
Non-Dissolution Operations Manual, Superior Court of New Jersey, Family
Division, § 1601 (Dec. 12, 2007).
A court, when presented with conflicting factual
averments material to the issues before it, ordinarily
may not resolve those issues without a plenary hearing.
While we respect the family court's special expertise, a
court may not make credibility determinations or
resolve genuine factual issues based on conflicting
affidavits. . . . Moreover, a plenary hearing is
particularly important when the submissions show there
is a genuine and substantial factual dispute regarding
the welfare of children.
[Ibid. (citation omitted).]
"[T]he matter of visitation  is so important, especially during the formative
years of a child, that if a plenary hearing will better enable a court to fashion a
plan of visitation more commensurate with a child's welfare . . . it should require
it." Id. at 138 (quoting Wagner v. Wagner, 165 N.J. Super. 553, 555 (App. Div.
1979)); see also Faucett v. Vasquez, 411 N.J. Super. 108, 118-19 (App. Div.
2009) (stressing the need for a plenary hearing even prior to a temporary
modification of custody).
The proceeding that took place did not constitute a plenary hearing. The
motion judge asked the parents questions, going back and forth between them.
He did not allow Jane's counsel to participate meaningfully in the proceeding s.
Visitation is now referred to as "parenting time." See Pascale v. Pascale,
140 N.J. 583, 588 (1995).
The parents were not given an opportunity to exchange discovery, retain an
expert witness, call witnesses or cross-examine each other.
A parenting time "decision . . . made without an evidential basis, without
examination and cross-examination of lay and expert witnesses, and without a
statement of reasons is untenable in the extreme." Fusco v. Fusco, 186 N.J.
Super. 321, 327 (App. Div. 1982).
There are obviously few judicial tasks which involve
the application of greater sensitivity, delicacy and
discretion than the adjudication of child custody
disputes, which result in greater impact on the lives of
those affected by the adjudication, and which require a
higher degree of attention to the properly considered
views of professionals in other disciplines. . . . That is
also why the parties must be afforded every reasonable
opportunity to introduce expert witnesses whose
evaluation of the family situation may assist the judge
in determining what is best for the children.
[Fehnel v. Fehnel, 186 N.J. Super. 209, 215 (App. Div.
The judge must allow the parties cross-examination. N.B. v. S.K., 435 N.J.
Super. 298, 308 n.12 (App. Div.2014) (finding error where the trial judge barred
the plaintiff from cross-examining the defendant because "courts must be
vigilant to ensure that parties' procedural due process rights are maintained");
Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005) (criticizing the
trial court's "failure to afford defendant essential procedural safeguards
including the right to cross-examine adverse witnesses and the right to call
witnesses in his own defense" as well as the general "informality of the
The motion judge engaged in questioning of both parties. Jane's counsel
attempted to speak on her behalf and was repeatedly rebuffed. The motion judge
said that he was "relaxing the rules of evidence" when Jane's counsel objected
to Joseph's testimony regarding her fiancé's threatening Facebook posts. Jane's
mother was not explored as a possible witness although she was present at the
hearing, even though the parties disputed whether she should care for John in
light of her health.
Busy FD calendars and the summary nature of many FD applications
might encourage the misperception that any dispute labeled FD rather than FM,
or divorce, requires fewer judicial resources. Thoughtful consideration of the
importance to any child of custody and parenting time decisions, however,
dictates the necessity of looking past the docket designation to the nature of the
dispute. No court had previously determined custody for this family, the parties
no longer agreed that Jane should retain primary residential custody, and it was
crucial that a fair process be used to ensure the best possible outcome for John.
III. Fact-findings and Reasons Required
The motion judge also erred by failing to make fact-findings and apply
those facts to the custody factors provided in N.J.S.A. 9:2-4(c). "When a court
orders a custody arrangement that is not agreed to by both parents, it must
identify on the record the specific factors that justify the arrangement." Bisbing
v. Bisbing, 230 N.J. 309, 322 (2017) (citing N.J.S.A. 9:2-4(f)).
"The touchstone for all custody determinations has always been 'the best
interest[s] of the child.'" Faucett, 411 N.J. Super. at 118 (alteration in original)
(quoting Kinsella v. Kinsella, 150 N.J. 276, 317 (1997)). "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).
N.J.S.A. 9:2-4, addressing "any proceeding involving the custody of a
minor child," provides:
In making an award of custody, the court shall consider
but not be limited to 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
Both parties alleged facts that raised concerns about John's safety with the
other parent. These facts were not substantiated beyond the parties' conflicting
certifications and testimony, without cross-examination, before the judge. They
alleged illegal drug use by the other parent, a break-in attempt at Jane's home,
and Jane having been stalked and threatened. Many of John's allegations were
based on what he had heard from others rather than his personal knowledge.
The hearing judge made no mention, either on the record or in the written
order, of the child's best interests or any of the factors in N.J.S.A. 9:2-4(c). John
had resided primarily with his mother for most of his life. After questioning
both parties, the judge said only: "Okay. Here's what I'm going to do," before
setting forth a new parenting time arrangement, granting Joseph primary
residential custody of the four-year-old boy. The only explanation the judge
offered for his decision was that John had "already been uprooted," so this plan
would not cause further disruption to the young child. We remand to be assigned
to a different judge, in an excess of caution, because this judge may have formed
a view of the situation through these proceedings. R. 1:12-1(d).
Reversed and remanded. We do not retain jurisdiction.