EMRAN SALAHUDDIN SHEIKH v. ALINAH RASHID

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2195-11T4

EMRAN SALAHUDDIN SHEIKH,

Plaintiff-Appellant,

v.

ALINAH RASHID, n/k/a ALINAH MALIK,

Defendant-Respondent.

_____________________________________

November 26, 2012

Argued October 15, 2012 - Decided

Before Judges Graves and Guadagno.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-260-11.

Eric S. Solotoff argued the cause for the appellant (Fox Rothschild, L.L.P., attorneys; Mr. Solotoff, of counsel and on the briefs; Melissa M. Ruvolo, on the briefs).

William T. Schiffman argued the cause for the respondent (Kantrowitz, Goldhamer & Graifman, P.C., attorneys; Mr. Schiffman, of counsel and on the brief).

PER CURIAM

Plaintiff Emran Salahuddin Sheikh appeals from portions of a Family Part order entered December 28, 2011, denying his motion to modify custody and parenting time. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The parties were married on July 23, 2000. Their only child, a daughter, was born on October 7, 2001. Within days of the child's birth, defendant moved out of the marital home in Missouri, taking the child. While defendant briefly returned, she relocated to Pennsylvania in March 2002. Plaintiff remained in Missouri to complete his medical training and saw his daughter on the average of once a month. The parties were divorced in Pennsylvania on October 19, 2004.

Prior to the divorce, the parties submitted to the first of several extensive psychological evaluations to assist the court in determining custody. The parties agreed with the conclusion of the evaluator, Peter H. Thomas, Ph.D., that the child should remain in the primary physical custody of her mother. They also agreed to a monthly visitation schedule.

In 2004, plaintiff relocated to Brigantine, New Jersey and set up a medical practice in the area. Plaintiff petitioned the Pennsylvania court to modify custody to a shared parenting arrangement. A second evaluation was conducted by Dr. Thomas in November and December 2004, which included a home study and input from a licensed social worker. Dr. Thomas recommended against a shared parenting arrangement as the child was "developing well" and, at her young age, she needed a "primary home base with steady and stable relationships." While Dr. Thomas was "happy" that plaintiff "vigorously approaches his daughter and tries to have more time with her[,]" he found it "destructive" if his "vigorous approach amounts to perpetual conflict."

Less than two years later, with the child approaching her fifth birthday, plaintiff again applied for a change in custody, seeking to be named the primary custodial parent. Dr. Thomas was commissioned again. He conducted an extensive evaluation and a lengthy report ensued. Dr. Thomas did not find an "adequate rationale" for changing residential custody as the child displayed "greater attachment" to her mother. Dr. Thomas concluded:

The overwhelming negative is that [defendant] and [plaintiff] are doing so poorly. This is the third time for this family to be with this evaluator. The dysfunction between mother and father must be addressed.

Plaintiff remarried in 2007 and shortly thereafter he again sought a change in custody. A fourth evaluation was conducted in February 2008. Dr. Thomas concluded that he did not see a reason for a major change in the child's life but noted:

This family has been repeatedly evaluated here. . . . However, repeated court conflicts are counterproductive. In my judgment, [plaintiff] and [defendant] need to accept the basic structure of the program and work to maximize it and to improve cooperation between them, not to keep pursuing efforts to change the basic structure.

On October 30, 2008, a Pennsylvania court entered an order continuing primary physical custody with defendant and providing a detailed visitation schedule.

Defendant remarried in October 2008 and planned to move to Bergen County to be closer to the school her husband was attending. A fifth evaluation was conducted. In a report dated June 8, 2009, Dr. Thomas noted that plaintiff suggested that the defendant's relocation to Bergen County was a "fork in the road" that supported transferring custody to him, as the child was familiar with his neighborhood and would not know anyone in the new location. Dr. Thomas recommended continuing the mother as the custodial parent as she "has always fulfilled this role and [the child] is prospering . . . ." Once again, Dr. Thomas expressed his hope that the parties "accept whatever outcome the court decides upon and implement that plan without further contention."

In 2010, both parties filed motions in New Jersey concerning various parenting issues. These motions were withdrawn and the parties consented to the entry of an order dated December 10, 2010, in the Family Part, Bergen County, appointing a parenting coordinator.

A dispute regarding plaintiff's parenting time over spring break led to his filing an order to show cause. The trial court ordered spring break split equally, but defendant filed a cross-motion seeking to discharge the parenting coordinator and modify the visitation schedule in the October 30, 2008 order. On May 13, 2011, the motion judge entered an order denying defendant's motion to discharge the parenting coordinator but amending the Pennsylvania order and providing a specific parenting schedule for summer vacation. Neither party appealed this order.

In August 2011, plaintiff relocated his family and medical practice from Atlantic to Bergen County. Later that month he filed a motion seeking a shared custody arrangement, a plenary hearing, and another custody evaluation. The motion judge heard oral argument on October 7, 2011, and reserved decision. On December 28, 2011, the judge entered an order denying plaintiff's motion to change custody. The judge refused to order a plenary hearing or another custody evaluation. The court modified plaintiff's parenting time so that his alternate weekends would extend until Monday morning. In the weeks following plaintiff's weekends with the child, he was granted two weekday visits; on the off-weeks, one visit. All school vacation time, including summer, was divided equally.

On appeal, plaintiff argues the motion judge erred in ruling that his relocation did not constitute a prima facie change of circumstances requiring discovery and a plenary hearing.

We begin by stating some general principles that guide our review. In any custody determination, "the primary and overarching consideration is the best interest of the child." Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). To establish a prima facie case for modification of a custody arrangement, the moving party must show a substantial change in circumstances, and that the changed circumstances affect the welfare of the child such that her best interests would be better served by modifying custody. Mimkon v. Ford, 66 N.J. 426, 438 (1975); Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007); Chen v. Heller, 334 N.J. Super. 361, 380 (App. Div. 2000); Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958).

A judge must consider a request for modification in accordance with the procedural framework established by our Supreme Court in Lepis v. Lepis, 83 N.J. 139, 157-59 (1980). Under Lepis, the first question is whether the party seeking modification has made a prima facie showing of a substantial change in circumstances. Id. at 157. If a prima facie showing is made, then Lepis requires the judge to consider whether discovery is needed and to define its scope. Id. at 157-58; R. 4:10-2; R. 5:8-1 to -6. Following discovery, if there is a genuine dispute of fact regarding the welfare of the child, then a plenary hearing must be held. Lepis, supra, 83 N.J. at 159; Hand, supra, 391 N.J. Super. at 105.

In denying plaintiff's motion, the judge determined that his relocation to Bergen County was not a changed circumstance that adversely affected the child's welfare. We agree. Plaintiff's relocation will reduce the transportation burden of both parents associated with the father's exercise of parenting time and afford him additional opportunities to spend time with his daughter. However, it is not the type of changed circumstance that impacts upon the safety, happiness, physical, mental, and moral welfare of the child such that her best interests would be better served by modifying custody. The trial court appropriately addressed plaintiff's relocation by modifying his visitation, granting him more frequent mid-week visits, and expanding his weekend visits.

A plenary hearing was not necessary as plaintiff failed to establish a genuine and substantial factual dispute regarding the welfare of the child. See Hand, supra, 391 N.J. Super. at 105.

We are satisfied that appellant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.