DANIEL PARKS v. LAURA POULTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1947-08T31947-08T3

DANIEL PARKS,

Plaintiff-Appellant,

v.

LAURA POULTER,

Defendant-Respondent.

________________________________________________________________

 

Submitted February 22, 2010 - Decided

Before Judges Lisa and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FD-09-2016-08.

Daniel Parks, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Plaintiff, Daniel Parks, appeals from the November 10, 2008 Family Part order modifying his parenting time. He also appeals from the Family Part order registering an order of July 24, 2008 entered by a Pennsylvania court modifying a previously-entered Pennsylvania court order providing for custody and parenting time. Plaintiff makes the following arguments on appeal:

I. THE TRIAL COURT DECISION IS IN VIOLATION OF UNITED STATES CONSTITUTION RIGHTS TO A FAIR TRIAL AND DUE PROCESS.

II. THE TRIAL COURT ERRED BY NOT CLEARLY STATING THE FACTUAL FINDINGS AND RELATING THOSE FINDINGS TO RELEVANT LEGAL CONCLUSIONS.

III. THE TRIAL COURT DECISION AND FINDINGS OF FACT ARE NOT SUPPORTED BY ADEQUATE, SUBSTANTIAL, CREDIBLE EVIDENCE.

IV. THE TRIAL COURT ERRED IN ACCEPTING EVIDENCE EX PARTE.

V. THE TRIAL COURT ERRED BY GIVING INSUFFICIENT NOTICE REGARDING EVIDENCE TO PLAINTIFF['S] COUNSEL.

VI. THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING INTRODUCTION AND USE OF PROTESTED AND QUESTIONABLE EVIDENCE IN CONSIDERATION OF ITS DECISION.

VII. THE TRIAL COURT DECISION IS UNJUSTLY DISTORTED BY FINDINGS OF FACT THAT ARE CONTRARY TO THE EVIDENCE.

VIII. THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S REQUEST FOR A FULL CUSTODY HEARING.

We agree with Points II and VIII, and accordingly remand for further proceedings in accordance with this opinion. We reject plaintiff's remaining arguments.

I

Plaintiff and defendant, Laura Poulter, were never married, but they lived together and had a child together. Their son, T.P., was born on October 30, 2005 in State College, Pennsylvania, where plaintiff and defendant were then residing. The parties separated on September 10, 2006.

On September 14, 2006, the parties entered into a written joint custody agreement, providing for equal residential and physical custody. An order was entered by the Court of Common Pleas of Centre County, Pennsylvania on September 13, 2007, "upon agreement of the parties," providing for joint legal custody and equally-shared physical custody on an alternating weekly basis. The order further authorized defendant to relocate to New Jersey with the minor child. On February 5, 2008, the Pennsylvania court entered an order referring the matter to Dr. Penelope Miller for a "Custody Evaluation/Resolution Meeting." Apparently Dr. Miller issued a report, but it is not in the record on appeal.

At a time not clear from the record, defendant moved to Jersey City. Plaintiff apparently continued to live in Pennsylvania until June 11, 2008, when he moved to Bronx, New York.

The first proceeding in New Jersey was commenced by the issuance of an order to show cause on March 6, 2008 in the Family Part in Hudson County, at plaintiff's request, for enforcement of the Pennsylvania order of September 13, 2007. An order was entered on the return date, March 13, 2008, granting registration of the Pennsylvania order and declaring that its provisions are "fully enforceable in the State of New Jersey."

The matter again came before the Pennsylvania court on July 24, 2008. An order was entered on that date, which continued to provide for joint legal custody, but further provided that defendant would have primary physical custody and that plaintiff would have parenting time three weekends per month from Friday at 5:00 p.m. until Sunday at 5:00 p.m., two weeks during the summer, and Father's Day.

The order contained the following preamble: "[u]pon review of the Child Custody Evaluation prepared by Dr. Penelope Miller and after conference between the Court and counsel for the parties, and over the objection of counsel for Plaintiff, it is hereby ORDERED as follows:" According to plaintiff, the judge conducted a conference in chambers with the attorneys and rendered this order without taking any testimony and without setting forth any reasons. As recited in the order, plaintiff objected to its entry.

The order also provided that the Pennsylvania court determined that it no longer had jurisdiction over the custody of T.P. and that its provisions would remain in full force and effect until the court in Hudson County, New Jersey or any other court having proper jurisdiction "assumes jurisdiction." The order further provided: "The parties are directed to file a custody action in Hudson County, New Jersey . . . ." The order then stated: "Due to the Court declining jurisdiction, the Custody Hearing scheduled for Friday, September 5, 2008, at 8:30 a.m. in the Annex Courtroom Centre County Courthouse Annex, Bellfonte, Pennsylvania, is cancelled." According to plaintiff, a full custody hearing in Pennsylvania had been contemplated, but in light of the relinquishment of jurisdiction by the Pennsylvania court, the anticipation of the parties was that a full hearing would instead be held in New Jersey.

The matter came before the Family Part in Hudson County on October 24, 2008. Plaintiff was represented by counsel; defendant was not. Although both parties were sworn, they did not provide testimony. There was no allegation then, or at any other time in these proceedings, that either party was unfit as a parent or should not for any reason have T.P. for extended periods of time. The hearing consisted of extended colloquy and argument as to whether the three weekends per month arrangement provided for in the July 24, 2008 Pennsylvania order should continue or be modified.

Plaintiff argued that the provision was only temporary, because by its terms it would remain in effect only until a New Jersey court "assumes jurisdiction." Therefore, plaintiff argued that upon the New Jersey court accepting jurisdiction, that order would expire by its terms and the prior Pennsylvania order providing for equal parenting time on a weekly basis would resume effectiveness. Defendant argued that the arrangements were changed by the Pennsylvania court, albeit over plaintiff's objection and without an evidentiary hearing, based upon Dr. Miller's report.

The judge concluded he was bound by the more recent Pennsylvania order and used its provisions as a starting point. After much discussion, the judge continued the three weekends per month arrangement, but expanded plaintiff's parenting time on each of those weekends to Monday at 5:00 p.m., rather than Sunday at 5:00 p.m. This modified arrangement was a compromise suggested by defendant. Plaintiff objected to it. In ordering the new arrangement, the judge did not conduct a best interests analysis or apply the factors set forth in N.J.S.A. 9:2-4c. The judge ordered the parties to return for another hearing on November 10, 2008.

At the November 10 hearing, both parties were represented by counsel. The same format was followed. Although the parties were sworn, they did not provide testimony. Both counsel engaged in extensive argument, and there was considerable colloquy which, at times, included plaintiff and defendant. Like the prior hearing, this proceeding could be characterized as an attempted settlement conference, at which various proposals and counterproposals were exchanged and debated. Plaintiff continued to argue for equal parenting time, and defendant continued to argue for a more restrictive arrangement. In the end, the judge ordered that plaintiff would have parenting time on alternate weekends from Friday at 6:00 p.m. until Tuesday at 6:00 p.m., and from 4:00 p.m. to 7:00 p.m. on the Thursday of plaintiff's off-week. The judge characterized the new modification as temporary, stating, "let's leave it this way [for] now temporarily without prejudice for the future."

When plaintiff and his attorney continued to object, the judge made comments which plaintiff understood to be threatening and coercive, suggesting that if plaintiff wanted to have a full hearing, he might do worse. Apparently referring to Dr. Miller's report, the judge said:

All right. This is what I suggest. Bring the doctor in. Subpoena the doctor and we'll put him [sic] on the stand. And he [i.e., plaintiff] may end up with two days, maybe one day a week. You want to go that way? Call the doctor in. You want to play hardball, I'll play hardball. It's my call, you end up with one day a week.

However, during the course of the November 10, 2008 hearing, when plaintiff complained that he had either never seen Dr. Miller's report or that it should not be considered because Dr. Miller was not providing live testimony and subject to cross-examination, the judge made clear that he was not considering the report. Indeed, he said he did not know what was in it.

As in the October 24, 2008 hearing, the judge again did not conduct a best interest analysis or apply the factors set forth in N.J.S.A. 9:2-4c in modifying the parenting time arrangement. This appeal followed.

II

Our review of a Family Part judge's factual findings is limited in scope. Cesare v. Cesare, 154 N.J. 394, 411 (1998). We will not interfere with factual findings that are "supported by adequate, substantial, credible evidence." Id. at 411-12. Indeed, we give enhanced deference to family court factfinding because of "the family courts' special jurisdiction and expertise in family matters." Id. at 413.

Two problems readily become apparent upon our review of the record of these proceedings. First, the judge twice modified the parenting time arrangements previously set by a Pennsylvania court order without conducting a hearing and without the consent of both parties. Second, the judge did not engage in a best interest analysis and did not express findings of fact. These problems are exacerbated by the course of events revealed through the Pennsylvania proceedings, which culminated in an order relinquishing jurisdiction, canceling an anticipated and scheduled custody hearing in Pennsylvania, and directing the parties to file a custody action in New Jersey. Plaintiff complied by promptly filing the action in Hudson County. Picking up where the Pennsylvania court left off, the New Jersey court should have allowed a custody hearing. In this procedural posture, there was no need for plaintiff to demonstrate a change in circumstances. A full hearing on the custody issue had already been scheduled in Pennsylvania and was contemplated upon transfer of jurisdiction to New Jersey.

We do not agree with plaintiff's contention that, as soon as the New Jersey courts accepted jurisdiction, the modified parenting time arrangement contained in the July 24, 2008 Pennsylvania order would expire by its terms, and the prior September 13, 2007 Pennsylvania order would resume effectiveness. We construe the language in the July 24, 2008 order as merely providing that its terms would remain in effect unless later changed by a New Jersey court upon assuming jurisdiction.

We also reject plaintiff's argument that the Family Part erred by registering the July 24, 2008 Pennsylvania order. The Uniform Child Custody Jurisdiction and Enforcement Act (Act), N.J.S.A. 2A:34-53 to -95, governs the registration of foreign custody determinations in New Jersey courts. Under the Act, a "child custody determination" is any "judgment, decree, or other order of a court providing for the legal custody, physical custody or visitation with respect to a child. The term includes a permanent, temporary, initial and modification order." N.J.S.A. 2A:34-54. The Act defines "modification" as "a child custody determination that changes, replaces, supersedes, or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination." Ibid. Thus, the July 24, 2008 Pennsylvania order is a "child custody determination" under the Act.

Pursuant to the Act, New Jersey courts must recognize and enforce foreign child custody determinations by way of "registration" of such determinations as long as the Act's jurisdictional requirements are met. N.J.S.A. 2A:34-77, -79. The registration process does not allow a New Jersey court to judge the merits of a foreign judgment. N.J.S.A. 2A:34-79d. Even under the most generous interpretation of plaintiff's arguments, he has never asserted that New Jersey lacked jurisdiction to register the July 24, 2008 Pennsylvania order or that Pennsylvania lacked jurisdiction to enter it. In fact, during the October 24, 2008 hearing, plaintiff's counsel stated that plaintiff was "not contesting jurisdiction."

Pursuant to the Act, New Jersey courts are required to

recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this act or the determination was made under factual circumstances meeting the jurisdictional standards of this act and the determination has not been modified in accordance with this act.

[N.J.S.A. 2A:34-77a.]

The Act provides that a foreign custody determination may be "registered" in New Jersey. N.J.S.A. 2A:34-79a. Once registered, an order must be recognized and enforced by the New Jersey court, and may not be modified until the New Jersey court obtains jurisdiction to modify the order, pursuant to N.J.S.A. 2A:34-67. N.J.S.A. 2A:34-80b.

A party opposing registration of a foreign custody order may only challenge it upon three legal bases: (1) that the foreign court that issued the order lacked jurisdiction, (2) that the foreign order has been vacated, stayed, or modified, or (3) that proper notice was never provided to the challenging party. N.J.S.A. 2A:34-79(d). None of these criteria had been met in this case. The July 24, 2008 Pennsylvania order was properly registered.

III

A parent's right to maintain a relationship with his or her child is constitutionally protected. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). "[A] parent's rights to the care and companionship of his or her child are so fundamental as to be guaranteed protection under the First, Ninth and Fourteenth Amendments of the United States Constitution." Wilke v. Culp, 196 N.J. Super. 487, 496 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985). However, constitutionally protected parenting rights are not absolute; they are tempered by the State's corresponding interest in protecting the welfare of children. M.M., supra, 189 N.J. at 279.

The State's interest in protecting child welfare is implicated when child custody or visitation is in dispute. Beck v. Beck, 86 N.J. 480, 497 (1981) ("The paramount consideration in child custody cases is to foster the best interests of the child."); see also Kinsella v. Kinsella, 150 N.J. 276, 317 (1997) (best interests of the child are the "primary and overarching consideration" in custody disputes). Thus, courts must guard the "'safety, happiness, physical, mental and moral welfare'" of a child whose custody is in dispute, even if to do so would be contrary to a custody agreement reached by the child's parents. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)).

In New Jersey, judicial child-custody determinations are controlled by N.J.S.A. 9:2-4, intended by the Legislature to balance the constitutional rights of custody-seeking parents with the best interests of the child. The best interests of the child must serve as a polestar that guides the statutory analysis. Kinsella, supra, 150 N.J. at 317. N.J.S.A. 9:2-4 provides, in pertinent part:

The Legislature finds and declares that it is in the public policy of this State to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.

In any proceeding involving the custody of a minor child, the rights of both parents shall be equal and the court shall enter an order which may include:

a. Joint custody of a minor child to both parents, which is comprised of legal custody or physical custody which shall include: (1) provisions for residential arrangements so that a child shall reside either solely with one parent or alternatively with each parent in accordance with the needs of the parents and the child; and (2) provisions for consultation between the parents in making major decisions regarding the child's health, education and general welfare;

b. Sole custody to one parent with appropriate parenting time for the noncustodial parent; or

c. Any other custody arrangement as the court may determine to be in the best interests of the child.

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 child.

. . . .

d. The court shall order any custody arrangement which is agreed to by both parents unless it is contrary to the best interests of the child.

e. In any case in which the parents cannot agree to a custody arrangement, the court may require each parent to submit a custody plan which the court shall consider in awarding custody.

f. The court shall specifically place on the record the factors which justify any custody arrangement not agreed to by both parents.

[Emphasis added.]

Certain procedures must be undertaken when child custody is contested. Rule 5:8-6, entitled "Trial of Custody Issue," requires a hearing where "custody of children is a genuine and substantial issue[.]" Rule 5:8-1, entitled "Investigation Before Award," further provides that mediation must be prescribed in certain circumstances:

In family actions in which the court finds that either the custody of children or parenting time issues, or both, are a genuine and substantial issue, the court shall refer the case to mediation . . . . If the mediation is not successful in resolving custody issues, the court may . . . require an investigation to be made by the Family Division . . . .

[Emphasis added.]

In addition, a plenary hearing is required where "there is a genuine and substantial factual dispute regarding the welfare of the children[.]" Hand, supra, 391 N.J. Super. at 105. A plenary hearing is only required, however, if the movant has made a prima facie showing that "a plenary hearing is necessary to resolve the factual dispute." Ibid. Otherwise, courts would "'be obligated to hold hearings on every modification application.'" Ibid. (quoting Lepis v. Lepis, 83 N.J. 139, 159 (1980)). As we have previously stated, because of the procedural posture in which New Jersey received the case from Pennsylvania, a hearing was already contemplated. Naturally, the parties should make their best efforts to resolve the dispute between themselves or through mediation and, if a hearing is to be held, they should also make their best efforts to narrow any factual disputes.

Most importantly, however, a best interest analysis, based upon competent evidence, is required. "In contested cases, the court is required to make a record of its reasons for its custody decision, and 'must reference the pertinent statutory criteria [of N.J.S.A. 9:2-4c] with some specificity'[.]" Kinsella, supra, 150 N.J. at 317 (quoting Terry v. Terry, 270 N.J. Super. 105, 119 (App. Div. 1994) (internal citation omitted)). The court must "consider and articulate why its custody decision is deemed to be in the child's best interest," and must "reference the . . . statutory scheme at least generally, to warrant affirmance." Terry, supra, 270 N.J. Super. at 119. Indeed, failure to do so has been deemed reversible error. See Luedtke v. Shobert, 342 N.J. Super. 202, 218 (App. Div. 2001).

IV

The registration of the July 24, 2008 Pennsylvania order in New Jersey is affirmed. In the interest of maintaining the stability of the arrangement which has now been in effect for more than sixteen months, we will not disturb the November 10, 2008 order. However, we remand for further proceedings in accordance with this opinion to resolve prospectively the custody and parenting time dispute.

 
Affirmed in part, modified in part, and remanded.

The Family Part did not incorporate in a written order a provision registering the July 24, 2008 Pennsylvania order. However, it is clear from the transcript of the October 24, 2008 hearing in the Family Part that the court ordered registration of the July 24, 2008 Pennsylvania order.

(continued)

(continued)

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A-1947-08T3

April 1, 2010