Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the LEE PHILLIPS v. KIMBERLY YORK

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1149-16T1

LEE PHILLIPS,

        Plaintiff-Appellant,

v.

KIMBERLY YORK,

     Defendant-Respondent.
_______________________________

              Argued October 2, 2017 – Decided November 6, 2017

              Before Judges Ostrer, Whipple and Rose.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Cape May
              County, Docket No. FD-05-0562-11.

              Michael Confusione argued the cause for
              appellant (Hegge & Confusione, LLC, attorneys;
              Mr. Confusione, of counsel and on the brief).

              Respondent has not filed a brief.

PER CURIAM

        Plaintiff Lee Phillips and defendant Kimberly York, who were

never married, have a child together born in October 2009.                         In

2012, the parties entered into a formal custody agreement providing

for joint physical and legal custody of the child.
    By order entered June 13, 2016, the Family Court awarded

defendant     sole   custody,   and    permitted   plaintiff   supervised

parenting time, and reasonable telephone contact at defendant's

discretion.     Plaintiff's subsequent applications to the trial

court seeking reestablishment of the prior shared custody and

parenting time agreement were denied.        Plaintiff appeals from the

trial court's orders.

    Following our review of the record and applicable legal

principles, we reverse and remand for a plenary hearing.

                                      I.

    We derive the following facts and procedural history from the

record.     On May 26, 2016, plaintiff was disoriented and appeared

to be intoxicated at a home improvement store, prompting the

store's staff to contact the police.           Having been advised by

plaintiff that his son lived with him, the police contacted the

local school district, obtained the child's emergency contact

information, and spoke with defendant who confirmed plaintiff's

history of prescription drug abuse.        On the advice of the police,

defendant contacted the Family Court and filed an order to show

cause ("OTSC") seeking emergency custody.

    At the June 13, 2016 return date of the OTSC, plaintiff

acknowledged he was "out of [his] mind" at the home improvement

store, but claimed he was simply dehydrated.          Relying primarily

                                      2                           A-1149-16T1
on the police report, which indicated possible drug abuse, the

court continued the prior emergency order, and advised plaintiff

it would review the order if plaintiff successfully completed an

inpatient treatment program.

     On July 22, 2016, the parties again appeared in court.

Plaintiff presented documentation indicating he had completed a

ten-day drug rehabilitation program, and stated he attends weekly

aftercare with his medical doctor and psychiatrist.        Unsatisfied

with the duration of the rehabilitation program, plaintiff's lack

of documentation indicating his present condition and chances of

relapse, and plaintiff's demeanor in court, the court suspended

all parenting time.

     In   August   2016,   plaintiff   filed   two   separate   emergent

applications with the trial court seeking modification of the June

13, 2016 order.     Plaintiff submitted to the court letters and

records regarding his progress and treatment.        By orders entered

on August 24, 2016 and August 26, 2016, the trial court denied

plaintiff's applications.    Among other things, the August 24, 2016

order determined nothing had changed since the July 22, 2016 order,

and the August 26, 2016 order found nothing had changed since the

August 24, 2016 order. Both orders incorporated the court's August




                                   3                             A-1149-16T1
19, 2016 letter setting forth the reasons plaintiff's applications

were denied.1

       On October 4, 2016, plaintiff again filed an OTSC seeking to

modify the July 22, 2016 order.                  A second trial judge denied

plaintiff's       application   for    failure         to   demonstrate    emergent

circumstances.        On   October    8,       2016,   plaintiff   filed    another

application seeking modification of the July 22, 2016 order.

       On November 15, 2016, the parties appeared before the second

trial judge on plaintiff's application seeking reinstatement of

parenting time and defendant's cross-motion for child support.2

Plaintiff submitted most of the same documentation previously

submitted to the court.         However, plaintiff did not submit any

reports attesting to his current treatment and progress. Plaintiff

testified that he attends individual counseling, group sessions

and bi-monthly psychiatric appointments.                    He also stated at the

time   of   the    underlying   incident,         he    was   dehydrated    from    a

combination of prescription Klonopin and Methadone.                   Unsatisfied

with plaintiff's demeanor in court, and the lack of documentation

establishing plaintiff was currently treating his addiction, the


1
  Plaintiff did not include the court's August 19, 2016 letter in
his appendix. In addition, on or about August 30, 2016, plaintiff
filed an emergent appeal, which we denied.
2
  It is unclear from the record whether this hearing pertained to
plaintiff's October 8, 2016 application.

                                           4                                A-1149-16T1
trial judge adjourned plaintiff's motion.3      The court indicated

further it would relist the matter on short notice after the

parties submitted "whatever documents they need."

       On November 18, 2016, plaintiff filed the present appeal of

the Family Court's October 4, 2016 order, and prior orders dated,

August 26, 2016, August 24, 2016, July 22, 2016, July 13, 2016,

and May 26, 2016 "eliminating visitation" with his son.              On

February 23, 2017, plaintiff filed a motion for summary disposition

of his appeal, or in the alternative, emergency relief seeking

visitation pending appeal.      On March 27, 2017, we denied the

motion, but temporarily remanded the matter to the trial court to

complete, within sixty days, the hearing commenced on November 15,

2016.    The order provided further that the trial court consider

plaintiff's requests for interim relief, including parenting time.

       On April 18, 2017, the parties appeared before a third family

court judge.4 The court declined to continue the hearing commenced

on November 15, 2016, observing plaintiff had not submitted the

documentation requested by prior orders, that is, a mental health

assessment, risk assessment and drug evaluation.         However, the


3
    The court also adjourned defendant's cross-motion.
4
  At some point during the November 15, 2016 hearing, the second
judge apparently recused himself from the matter because he was
familiar with an entity owned, in part, by plaintiff.


                                  5                           A-1149-16T1
court granted plaintiff up to two hours of parenting time per

week, supervised by a family services agency.       The order also

provided that a return date for the matter would be scheduled when

plaintiff submitted the requisite documentation.5

     In his instant appeal, plaintiff argues the Family Court

erred in denying his motions for resumed parenting time with his

son, and for doing so without affording him a hearing.

                                 II.

     Our scope of review of the Family Part's orders is limited.

Cesare v. Cesare, 
154 N.J. 394, 411 (1998).     We accord deference

to the family courts due to their "special jurisdiction and

expertise" in the area of family law.     Id. at 413.   The court's

findings are binding as long as its determinations are "supported

by adequate, substantial, credible evidence."        Id. at 411-12

(citing Rova Farms Resort, Inc. v. Investors Ins. Co., 
65 N.J.
 474, 484 (1974)).

     A decision concerning custody or visitation is within the

sound discretion of the judge.    See Randazzo v. Randazzo, 
184 N.J.
 101, 113 (2005).    A judge must consider a request for modification

of a custody or visitation order in accordance with the procedural




5 On April 27, 2017, plaintiff filed an emergent appeal, presumably
of the court's April 18, 2017 order, which we denied. Plaintiff
did not include our order in his appendix.

                                  6                          A-1149-16T1
framework established in Lepis v. Lepis, 
83 N.J. 139, 157-59

(1980).     To establish a prima facie case for modification of a

visitation arrangement, the moving party must show a substantial

change in circumstances.        Hand v. Hand, 
391 N.J. Super. 102, 105

(App. Div. 2007).       The moving party must also demonstrate the

changed circumstances affect the welfare of the child such that

his or her best interests would best be served by modifying the

current arrangement.        Ibid.   In evaluating whether the requisite

changed     circumstances     exist,   the    court   must    consider     the

circumstances that existed at the time the current order was

entered.     Sheehan v. Sheehan, 
51 N.J. Super. 276, 287-88 (App.

Div.), certif. denied, 
28 N.J. 147 (1958).                After considering

those facts, the court can then "ascertain what motivated the

original judgment and determine whether there has been any change

in circumstances."     Id. at 288.

     Moreover, a plenary hearing is required when there is "a

genuine and substantial factual dispute" regarding the child's

wellbeing.    Hand, supra, 
391 N.J. Super. at 105.         The need to hold

a plenary hearing is particularly compelling where there are

material factual disputes raised by the parties.              See K.A.F. v.

D.L.M., 
437 N.J. Super. 123, 137 (App. Div. 2014) ("A court, when

presented    with   conflicting     factual   averments    material   to   the

issues before it, ordinarily may not resolve those issues without

                                       7                              A-1149-16T1
a plenary hearing.").      The failure to conduct a plenary hearing

where there are genuine issues of fact in dispute requires reversal

and remand for such a hearing.          Id. at 138; see also Faucett v.

Vasquez, 
411 N.J. Super. 108, 119 (App. Div. 2009) ("[a]bsent

exigent circumstances, changes in custody should not be ordered

without a full plenary hearing."), certif. denied, 
203 N.J. 435

(2010).

     Here,    initially,   there   was    a   basis   for   the   court    to

temporarily restrict parenting time on the return date of the

OTSC, pursuant to the May 26, 2016 incident.          However, in seeking

a change of custody and visitation, as defendant did here, the

onus was on her to establish at a plenary hearing that the best

interests of the child warranted full suspension of defendant's

parenting     time.   Instead,     all        three   judges      expressed

dissatisfaction with plaintiff's submissions because they were not

conclusive as to his current state of sobriety and mental health

status.     Although the submissions were unclear and replete with

hearsay, they raised a material factual dispute that should have

been resolved in a plenary hearing.

     Furthermore, as the second trial judge observed:

            I think you're placing too much emphasis on
            [the first trial judge's] order where he says
            that [plaintiff's] . . . recovery from
            substance abuse is secure.    I think you're
            thinking that means a one hundred percent

                                    8                               A-1149-16T1
          absolute iron-clad guarantee and I don't think
          that's what it means.         It just means
          reasonable. What is reasonable . . . so that
          the [c]ourt can make a determination that [the
          child] will be safe if there's visitation with
          his dad.

We agree with plaintiff that the trial court should have conducted

an evidentiary hearing to determine, among other things, whether

plaintiff "reasonably" recovered from substance abuse such that

modification of the June 13, 2016 order is in the best interests

of the child.    Further, a hearing was required to be conducted

as soon as practicable because a "temporary decision to change

custody can take on a life of its own, creating a new status quo.

Nominally temporary orders involving the custody of a child have

a tendency to become permanent . . . ." Peregoy v. Peregoy, 
358 N.J. Super. 179, 202-03 (App. Div. 2003).

     Accordingly, we must vacate the June 13, 2016 order and again

remand this matter for a custody hearing.   To reiterate, defendant

bears the burden to establish a change in circumstances that

warrant a permanent change in the previous custody agreement.      At

the conclusion of the hearing, the court shall consider each of

the factors set forth in 
N.J.S.A. 9:2-4. See V.C. v. M.J.B., 
163 N.J. 200, 227-28 ("[c]ustody and visitation issues . . . are to

be determined on a best interests standard giving weight to the

factors set forth in N.J.S.A. 9:2-4"), cert. denied, 
531 U.S. 926,


                                9                           A-1149-16T1

121 S. Ct. 302, 
148 L. Ed. 2d 243 (2000).        In the interim, the

trial court in its discretion may consider plaintiff's request for

more liberal supervised visitation and, in so doing, is free to

impose restrictions on plaintiff, such as random drug testing.

     Reversed and remanded for further proceedings consistent with

this opinion.   We do not retain jurisdiction.




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