JOSHUA HERNANDEZ v. YVETTE JAYLEEN FERMIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JOSHUA HERNANDEZ,

Plaintiff-Appellant,

v.

YVETTE JAYLEEN FERMIN,

Defendant-Respondent.

_______________________________

August 4, 2014

Submitted April 7, 2014 Decided

Before Judges Harris and Kennedy.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FD-09-002324-10.

Joshua Hernandez, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Plaintiff appeals from a Family Part order entered on October 26, 2012, continuing a prior parenting time and custody order. Plaintiff argues that he was denied equal rights, equal protection of the law, and access to the court. He further alleges that the Family Part judge based his custody determination on an incomplete investigation, erred in using the tender years doctrine as a factor in deciding custody, and failed to hold defendant accountable for violating court orders. We disagree and affirm.

I.

We discern the following facts and procedural history from the record on appeal.

Plaintiff and defendant began dating in 2008. The two never married, but had one daughter, Sara,1 born in 2009. Approximately one month after their daughter was born, the parties separated and defendant assumed custody.

In April 2010, defendant filed a complaint for custody of Sara. Following a hearing on May 17, 2010, the Family Part issued a temporary custody and parenting time order. The court granted defendant temporary legal and residential custody, and set a parenting time schedule for plaintiff.

On June 1, 2010, the parties attended mediation where they agreed to joint legal custody. Thereafter, the Family Part entered an order memorializing the parties' Consent Agreement, granting defendant residential custody, and continuing the May 17 parenting time schedule.

Throughout the next two years, plaintiff filed various complaints, and the Family Part held multiple hearings on issues concerning custody and visitation. In August 2012, plaintiff filed a motion alleging that defendant committed several parenting time violations, and seeking sole legal custody of Sara, and a modification to the parenting time schedule.

On October 26, 2012, the Family Part held a hearing on plaintiff's application for sole legal custody and equal parenting time. Plaintiff sought sole custody of his daughter based on defendant's alleged violations of parenting time orders and plaintiff's "concern" for the safety of Sara. Plaintiff explained that he was concerned for Sara's safety because she recently received a second or third-degree burn while in defendant's care. According to defendant, Sara was jumping on a bed at her aunt's house, fell off the bed, and was struck by a curling iron.2 Plaintiff also alleged that when Sara was six months old she sustained an unexplained cut on her leg while in defendant's care, and that defendant neglected to care for a potential dental cavity that Sara had.

The Family Part judge, following the hearing, explained to the parties that they could not simply make allegations that

I'm the best father or I'm the best mom and I want to take the child away from you. That is not the way it works. If [plaintiff] had residential custody the same thing. You can't walk in and change joint custody to sole custody. There has to be a trial.

The judge added that in order to determine the issue of sole custody of the child, he would need to hear testimony from a psychologist or a doctor respecting parental fitness. He explained that in order to change custody "you've got to prove a substantial change of circumstances. The fact that the [child] got injured is not in of itself grounds to take a child away . . . ."

The Family Part judge concluded that plaintiff's allegations were not sufficient to warrant a change of custody. The judge further explained that if plaintiff elected to go to trial, he would have to prove that the injury was not a mere accident, but rather, was the result of defendant's unfitness as a parent. Therefore, the judge denied plaintiff's request for relief, and suggested that plaintiff consult with a lawyer.

The judge entered an order continuing the previous parenting time schedule and custody order "as there [was] no change in circumstances."

This appeal followed.

II.

Our scope of review of child custody determinations is exceedingly limited. The conclusions of trial judges regarding child custody are "entitled to great weight and will not be lightly disturbed on appeal." DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976); see also Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div.), certif. denied, 28 N.J. 147, 145 (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). "'[A] judgment involving the custody of minor children is subject to modification at any time upon the ground of changed circumstances.'" Innes v. Carrascosa, 391 N.J. Super. 453, 500 (App. Div. 2007) (quoting Sheehan, supra, 51 N.J. Super. at 287)). A party seeking such modification bears the burden of proof. Ibid.

Resolution of a request to change custody requires the court to consider the custodial parent's fitness. Sheehan, supra, 51 N.J. Super. at 290. To determine fitness, "[t]he court will look to the 'character, condition, habits and other surroundings'" of the parent. Id. at 291 (quoting Clemens v. Clemens, 20 N.J. Super. 383, 392 (App. Div. 1952). The court must also consider the child's welfare. Id. at 290. The child's welfare "has been construed as meaning the 'safety, happiness, physical, mental and moral welfare of the child.'" Id. at 291 (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)). It includes "many elements and concerns more than the physical well-being resulting from the furnishing of adequate food, clothing and shelter. It concerns, inter alia, the spiritual and social welfare of the child." Id. at 292. "The basic issue is a change in the circumstances which would affect the welfare of the child[]." Sheehan, supra, 51 N.J. Super. at 287.

Guided by these principles and our review of the record, we discern no error in the determinations made by the Family Part judge warranting appellate intervention. We have considered plaintiff's arguments and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm essentially for the reasons stated by the Family Part judge on the record of October 26, 2012.

Affirmed.

1 Due to the nature of the proceedings we use a fictitious name to protect the minor child's identity.

2 Upon learning of the incident, plaintiff did not notify the Division of Youth and Family Services (DYFS), as it was then known.