J.M v. J.R

Annotate this Case

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2953-08T2

J.M.,

Plaintiff-Respondent,

J.R.,

Defendant-Appellant.

___________________________________

Submitted March 17, 2010 - Decided April 15, 2010

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hunterdon
County, Docket No. FD-10-110-07 and
Middlesex County, Docket No. FV-10-282-07.

J.R., appellant pro se.

J.M., respondent pro se.

PER CURIAM

Defendant J.R., appeals the November 14, 2008, order of the

Family Part denying his application for joint custody of the

parties' minor child, a change in parenting time, a reduction in

child support, and related relief, as well as the January 16,

2009, order denying his motion for reconsideration. We affirm

the orders, but remand for further proceedings consistent with

this opinion.

We discern the following factual and procedural background

from the record. J.R. and plaintiff J.M. have a daughter who

was born in January 2007. They had a dating relationship but

never married.

On January 31, 2007, J.M. filed a non-dissolution complaint

(FD-10-110-07) seeking custody, the establishment of a

parenting-time schedule, and support. An order for support was

entered on the recommendation of a child support hearing officer

on March 9, 2007. The custody and parenting-time issues were

referred to mediation, which was unsuccessful.

On April 20, 2007, the first Family Part judge assigned to

the matter entered an order establishing a parenting-time

schedule for J.R. The judge's reasons are not reflected in the

record. Initially, J.R. was to have parenting time on alternate

weekends, but without overnights. His parenting time was to be

expanded to include three weekdays a week, as of May 18, 2007.

The order does not contain a provision with respect to custody,

although it is implicit in the order that the child will reside

with J.M.

A-2953-08T2
2

On May 18, 2007, J.M. filed a complaint (FV-10-282-07)

seeking a restraining order pursuant to the Prevention of

2C:25-17 to -35. A
Domestic Violence Act (act), N.J.S.A.

different Family Part judge issued a temporary restraining order

(TRO) on the same day. Among other relief, the TRO granted J.M.

temporary custody of the parties' daughter and suspended J.R.'s

parenting time. The same judge entered an amended TRO on May

24, 2007, giving J.R. supervised parenting time on three dates

prior to the adjourned date for the final hearing.

The first Family Part judge entered a second amended TRO on

June 1, 2007, providing for additional supervised parenting time

pending completion of the domestic violence trial. He entered a

final restraining order (FRO) on June 19, 2007, having found

that J.R. had engaged in domestic violence. The FRO continued

temporary custody with J.M. and established a parenting-time

hearing for July 2007. On July 10, 2007, the judge entered an

order awarding counsel fees to J.M.

It appears that the parenting-time hearing scheduled for

July 2007 did not take place. On August 24, 2007, a third

Family Part judge heard J.M.'s application for an increase in

child support to include childcare costs and the payment of

arrears. J.R. was ordered to pay sixty-five percent of

A-2953-08T2
3

childcare costs, and an arrears-payment schedule was

established.

On October 18, 2007, a fourth Family Part judge held a case

management conference in the domestic violence action. She

entered an amended FRO that continued temporary custody with

J.M. and set forth a parenting-time schedule similar to the one

that existed prior to the commencement of the domestic violence

action, except for the inclusion of an overnight on J.R.'s

parenting-time weekend.

On October 26, 2007, an enforcement hearing was held by the

third Family Part judge, who ordered that the childcare costs be

paid through probation and revised the arrears-payment schedule.

He also entered a judgment against J.R. for the counsel fee

award.

At another case management conference in the domestic

violence action on November 15, 2007, the fourth Family Part

judge entered a second amended FRO to permit the parties to

communicate by email or text message and to provide for holiday

parenting time.

In January 2008, J.R. filed a motion in the non-dissolution

action, seeking joint legal custody, an increase in parenting

time, a decrease in his support obligation, and related relief.

J.M. filed a cross-motion, seeking a change in the pick-up and

A-2953-08T2
4

drop-off times and locations. The motion was decided by the

third Family Part judge, who granted J.R. (1) access to his

daughter's medical and education records, (2) a copy of her

social security card, and (3) an expanded holiday parenting-time

schedule, but denied his requests for joint legal custody, an

increase in his regular parenting time, and a related decrease

in support. J.M.'s cross-motion was granted. The implementing

order, captioned in both the domestic violence and non-

dissolution actions, was entered on March 7, 2008.

In June 2008, J.R. filed another motion in the non-

dissolution action, seeking essentially the same relief. The

motion was denied by the third Family Part judge on July 11,

2008. On September 5, 2008, a child support hearing officer

recommended an order adjusting J.R.'s support obligation

downward, due to a change in the childcare costs.

On September 29, 2008, J.R. filed another motion seeking

joint legal custody and adjustments in parenting time and

support. That motion was denied by the first Family Part judge

on November 14, 2008. Shortly thereafter, J.R. filed a motion

for reconsideration. The same judge denied the motion for

reconsideration on January 16, 2009. The order of denial, which

was captioned in both the domestic violence and non-dissolution

actions, included a provision that appropriate sanctions would

A-2953-08T2
5

be awarded against J.R. in the event he "refiled such a similar

motion."

In his written decision on the motion for reconsideration,

the first Family Part judge explained that each of the denials

was based upon J.R.'s failure to establish changed

circumstances. He observed that the mere passage of a few

months between motions does not signify a change in

circumstances. This appeal followed.

II.

Our scope of review of a Family Part judge's factual

findings in the context of an evidentiary hearing is limited.

Cesare v. Cesare,
154 N.J. 394, 411 (1998); Crespo v. Crespo,

395 N.J. Super. 190, 193-94 (App. Div. 2007). We are generally

bound by the trial court's findings of fact "when supported by

adequate, substantial, credible evidence." Cesare, supra, 154

at 411-12. This is especially so when questions of
N.J.

credibility are involved. Id. at 412. In addition, "[b]ecause

of the family courts' special jurisdiction and expertise in

family matters, appellate courts should accord deference to

family court factfinding." Id. at 413.

Because of the special expertise of Family Part judges, "we

do not second-guess . . . the exercise of their sound

discretion," and we recognize that "'[j]udicial discretion

A-2953-08T2
6

connotes conscientious judgment, not arbitrary action; it takes

into account the law and the particular circumstances of the

Hand v. Hand,
391 N.J. Super. 102, 111
case before the court.'"

(App. Div. 2007) (quoting Higgins v. Polk,
14 N.J. 490, 493

(1954)). However, a trial judge's legal decisions are subject

to our plenary review. Crespo, supra,
395 N.J. Super. at 194;

Lobiondo v. O'Callaghan,
357 N.J. Super. 488, 495 (App. Div.),

certif. denied,
177 N.J. 224 (2003).

Decisions concerning custody and visitation rights are

addressed to the sound discretion of the Family Part judge and

will be reversed only for an abuse of discretion. Levine v.

Bacon,
152 N.J. 436, 442 (1998). In such cases, we are obliged

to affirm the judge's decision unless the judge's findings are

"so manifestly unsupported by or inconsistent with competent,

relevant and reasonably credible evidence as to offend the

Cesare, supra,
154 N.J. at 412. Unless
interests of justice."

the discretion exercised by the judge is clearly arbitrary and

unreasonable under the particular circumstances, it is not the

function of an appellate court to substitute its judgment for

that of the motion judge. Smith v. Smith,
17 N.J. Super. 128,

133-34 (App. Div. 1951), certif. denied,
9 N.J. 178 (1952). An

appellate court should not interfere in the discretion exercised

by the judge absent a clear showing by the appellant that the

A-2953-08T2
7

"action of the trial court is plainly erroneous and manifestly a

misuse of its discretion." Id. at 133.

We have long recognized that "[t]he pivotal factor and

paramount consideration in matters involving custody of minor

children is the happiness and welfare of such children."

Sheehan v. Sheehan,
51 N.J. Super. 276, 291 (App. Div.), certif.

denied,
28 N.J. 147 (1958). Once custody has been decided, a

court must still consider the happiness and welfare of the chil-

dren. Cf. Beck v. Beck,
86 N.J. 480, 497 (1981) ("It would be

incongruous and counterproductive to restrict application of

[the best interests of the child] standard to the relief

requested by the parties to a custody dispute.").

This concern must infuse the consideration of parenting

time. "The children's best interest in this situation is

closely related to the noncustodial parent's right to

visitation. 'From that perspective, the "cause" requirement of

N.J.S.A. 9:2-2 implicates the best interests of the child as

manifested through visitation with the noncustodial parent.'"

Winer v. Winer, 241 N.J. Super. 510, 518 (App. Div. 1990)

(quoting Holder v. Polanski,
111 N.J. 344, 352 (1988)) (internal

citation omitted). Thus, the court must consider each parent's

constitutional right to enjoy a relationship with their

In re P.S.,
315 N.J. Super. 91, 107 (App. Div. 1998).
children.

A-2953-08T2
8

The goal is to arrive at a reasonable parenting-time schedule

consistent with the best interests of the children and the

Wilke v. Culp,
196 N.J. Super. 487, 496
rights of the parents.

(App. Div. 1984) ("It is well[-]settled that the law favors

visitation. . . . [C]ourts should endeavor that children of

separated parents should be imbued with love and respect for

both parents . . . by conferring reasonable rights of visitation

on the [noncustodial] parent." (citations omitted)), certif.

denied,
99 N.J. 243 (1985); In re Jackson,
13 N.J. Super. 144,

147 (App. Div. 1951) ("Consistent with the paramount concern for

the welfare of the child . . . [a] court always determines that,

whenever custody is awarded to a parent, the other parent shall

not only be privileged to see the children at all times, but

shall be encouraged by the parent custodian in seeing them as

freely, as fully, as often, and as long as possible, and in a

manner best suited to the encouragement of mutual affection."

(internal citation and quotations omitted)); Barron v. Barron,

184 N.J. Super. 297, 301 (Ch. Div. 1982) ("Parental rights will

be preserved unless enforcing them will adversely affect the

'safety, happiness, physical, mental and moral welfare of the

child.'" (quoting Fantony v. Fantony,
21 N.J. 525, 536

(1956))); cf. V.C. v. M.J.B.,
163 N.J. 200, 215-28 (holding that

visitation is presumptive subject to N.J.S.A. 9:2-4

A-2953-08T2
9

considerations), cert. denied,
531 U.S. 926,
121 S. Ct. 302,
148 L. Ed. 2d 243 (2000).

III.

With the governing legal principles in mind, we now address

the issues raised on appeal.

In this case, we are concerned with parenting time for a

child who was born in January 2007. The initial parenting-time

schedule, entered when the child was three-months old in April

2007, was for parenting time on alternate weekends, from 9 a.m.

to 6 p.m. on Saturday and Sunday, without overnights. That

schedule was to have been expanded in May, but parenting time

was suspended temporarily because of the domestic violence

action. Some minimal parenting time, with supervision, was

permitted in the interim.

The amended FRO entered in October 2007, provided for

unsupervised parenting time on Mondays, Tuesdays, and Wednesdays

from 8:45 a.m. to 5 p.m., and, as of November 3, 2007, alternate

weekends, from 9:30 a.m. on Saturday to 4 p.m. on Sunday.1 This

schedule offered J.R. somewhat more parenting time than he would

have been allowed under the April order.

1
An amended TRO entered in November 2007 made slight alterations
to the starting and ending times.

A-2953-08T2
10

The March 2008 order set forth an expanded holiday

parenting schedule, including holidays, the child's birthday,

the parents' birthdays, and mother's and father's days. It also

modified the weekend schedule to provide for drop-off on

Saturday at 11 a.m. and pick-up on Sunday at 7 p.m., which did

not result in a diminution of J.R.'s parenting time.

J.R.'s subsequent applications for expanded parenting time

were denied, based upon determinations by the motion judges that

there had been no changed circumstances to warrant an

alteration. We note that the denial on July 11, 2008, followed

a hearing at which both parties testified. The requests for

changes in the amount of support were primarily premised on the

proposed changes in parenting time and were, consequently,

denied as well.

Based upon our review of the record, we find no abuse of

discretion with respect to the parenting time or the related

support issues. J.R. is permitted an overnight every other

Saturday, and three full days without overnights every week.

Especially considering the child's age, we consider that liberal

parenting time. We will not substitute our judgment for that of

the Family Part judges involved in this case. Smith, supra,
17 N.J. Super. at 133.

A-2953-08T2
11

We agree with the Family Part judges that the mere passage

of months does not amount to changed circumstances, although we

are cognizant of the fact that, as children grow older, the

parameters of parenting time may change. Because we find no

abuse of discretion, we affirm the orders on appeal.

J.R. suggests that one or more of the judges had a bias

against him or in favor of J.M. A judge must conduct the court

proceedings in a fair and impartial manner. Mercer v.

Weyerhaeuser Co.,
324 N.J. Super. 290, 297-98 (App. Div. 1999)

(citing Cestero v. Ferrara,
110 N.J. Super. 264, 273 (App. Div.

1970), aff'd,
57 N.J. 497 (1971)). Having reviewed the record,

we find nothing to support any assertion of judicial bias.

We note that there does not appear to be an order for

custody other than the provisions of the various domestic

violence restraining orders giving "temporary custody" to J.M.

While we understand that custody orders are always subject to

change, we have concluded that there should be a hearing to

determine the issue of custody on a more permanent basis. At

that hearing, the judge will need to fully consider the factors

set forth in N.J.S.A. 9:2-4, as well as applicable case law, in

determining what custody arrangements should be implemented on a

A-2953-08T2
12

going-forward basis. Any necessary modifications of parenting

time or child support can be made at that time.

We understand that the domestic violence action has been

transferred to Middlesex County because both parties are

employed by law enforcement entities associated with Hunterdon

County. We further understand that the pendency of this appeal

has delayed the similar transfer of the non-dissolution action.

On remand, that action should also be transferred to Middlesex

County prior to the remand hearing. All further orders not

directly involving domestic violence should be entered under the

non-dissolution docket number.

Having reviewed the remaining issues raised on appeal in

light of the record before us, we have determined that they do

not warrant further discussion in a written opinion. R. 2:11-

3(e)(1)(E). We add only that we cannot address J.R.'s arguments

with respect to the merits of the domestic violence action. The

FRO was entered in June 2007, and the time to appeal has long

since expired. See R. 2:4-1(a).

IV.

In summary, we affirm the orders on appeal. We remand to

the Family Part for a custody hearing following the transfer of

A-2953-08T2
13

the non-dissolution action to Middlesex County, at which time

any necessary adjustments to parenting time and support may be

considered in light of the custody arrangement chosen by the

judge assigned to the case.

Affirmed and remanded for further proceedings consistent

with this opinion.

A-2953-08T2
14

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.