KHALED DARDIR v. SHROUK KHALIL

NOT FOR PUBLICATION WITHOUT THE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-0965-16T4


KHALED DARDIR,

        Plaintiff-Appellant,

v.

SHROUK KHALIL,

     Defendant-Respondent.
_____________________________

              Submitted December 4, 2017 – Decided April 27, 2018

              Before Judges O'Connor and Vernoia.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Hudson
              County, Docket No. FM-09-0232-13.

              Khaled Dardir, appellant pro se.

              Billy E. Delgado, LLC, attorney for
              respondent (Dalya Youssef, on the brief).

PER CURIAM

        Plaintiff Khaled Dardir appeals from certain provisions in

an October 3, 2016 Family Part order.              He challenges: (1) the

denial of his request he be designated the primary caretaker of

the parties' child, presently age six; (2) the denial of his
request for reimbursement of his share of the parenting time

coordinator's fees; (3) the provision ordering he contribute to

the child's after-school care expenses; and (4) the provision

ordering the child to have a neuropsychological evaluation.

Plaintiff also requests we direct another judge to hear this

matter on remand.   We affirm.

                                 I

    The parties married in 2009, had a child in 2011, and

divorced in 2013.   The parties' property settlement agreement

(PSA), incorporated into a dual judgment of divorce, designated

defendant Shrouk Khalil the child's primary caretaker.

    One year after they divorced, plaintiff filed a motion

seeking to be designated the primary caretaker.   On June 14,

2014, the court entered an order directing Ronald Silikovitz,

Ph.D., conduct a custody evaluation, and appointing a guardian

ad litem (GAL) to represent the child's interests.     The court

also ordered a plenary hearing be scheduled after Dr. Silikovitz

completed his report.

    Thereafter, the GAL authored a report recommending

defendant continue as the primary caretaker but Dr. Silikovitz

determined otherwise, recommending plaintiff should be so

designated.   The court scheduled a plenary hearing.   After a day

of testimony, the parties settled, entering into a consent order
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on October 6, 2015.   That order provided defendant was to

continue as the child's primary caretaker.     The parties also

agreed to retain the services of a parenting time coordinator

(PTC) to resolve any parenting time problems; plaintiff agreed

to pay sixty and defendant forty percent of the PTC's fees.

    Approximately one year later, on October 3, 2016, the court

entered an order denying a motion plaintiff had filed requesting

he become the primary caretaker.     The court found plaintiff

failed to show a change in circumstances warranting any

modification in the parties' custodial arrangement.     The court

also denied plaintiff's request he be reimbursed for his

contribution to the PTC's fees, concluding plaintiff agreed to

be responsible for sixty percent of those fees in the consent

order.

    In the October 3, 2016 order, the court also granted

defendant's cross-motion to permit her to take the child for a

neuropsychological evaluation.     During oral argument on the

motion, plaintiff conceded he did not oppose such request and,

after having reviewed the record, the court found plaintiff had

previously alleged the child had various problems.     The court

found it would be in the child's best interests to be evaluated

so if there were any problems, they could be addressed.


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     Finally, the court ordered plaintiff contribute toward the

child's after-school care costs.      At the time the parties

entered into their PSA, the child was not yet attending school.

The PSA noted the child was being cared for by defendant's

mother and stated that if such care ceased, the parties would

attempt to agree upon a new arrangement and, if they failed,

defendant could file a motion.     Thereafter, the parties

attempted but failed to reach an accord on this issue and

defendant filed a motion.   The court determined the parties

would pay for after-school care costs, and directed plaintiff to

pay sixty-three and defendant thirty-seven percent of such

costs, the percentage break-down the parties agreed govern

payment for extra-curricular activities in the PSA.1

                                 II

     On appeal, plaintiff asserts the following arguments for

our consideration:

          POINT I: THE TRIAL COURT ERRED BY DENYING
          THE CHANGE OF CUSTODY. ITS PRIOR ORDERS THAT
          A PLENARY HEARING WOULD FOLLOW THE
          COMPLETION OF THE COURT APPOINTED EXPERT
          REPORT AS TO CHANGE OF CUSTODY IF CONDITIONS
          WERE MET.


1
  In their PSA, the parties agreed to deviate from the Child
Support Guidelines when they settled upon the amount of child
support each was to pay. Nevertheless, they agreed plaintiff
was to contribute sixty-three and defendant thirty-seven percent
toward the cost of the child's extra-curricular activities.
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         POINT II: THE TRIAL COURT ERRED BY DENYING
         THE PLAINTIFF REIMBURSEMENT MONIES PAID DUE
         TO DEFENDANT'S LACK OF COPARENTING.

         POINT III: THIS COURT SHOULD REVERSE THE
         ORDER TO COMPEL THE PLAINTIFF OF PAYING THE
         AFTER-SCHOOL CARE AS PER LACK OF DISCUSSION
         AT THE HEARING.

         POINT IV: THE TRIAL COURT ERRED BY GRANTING
         THE DEFENDANT'S MOTION TO MOVE FORWARD TO
         EVALUATE A MINOR CHILD.

         POINT V: ON REMAND, THIS MATTER SHOULD BE
         HEARD BY A DIFFERENT JUDGE.

    We first address plaintiff's contention the court erred

when it denied his request to become the child's primary

caretaker.    He argues that, before the custody hearing was

scheduled, Dr. Silikovitz determined he should be the primary

caretaker.    Therefore, he contends, he should have been granted

custody when he again sought to be designated the primary

caretaker in his most recent motion.      We reject this argument.

    Custody orders are not considered "final orders" and are

always subject to modification.       Wilke v. Culp, 
196 N.J. Super.
 487, 494 (App. Div. 1984).   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).

When a judgment or order regarding custody and visitation is

rendered, "whether [it is] reached by consent or adjudication,


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[it] embodies a best interests determination."     Todd v.

Sheridan, 
268 N.J. Super. 387, 398 (App. Div. 1993).

    To alter a custody arrangement, the moving party must show

there has been a change in circumstances and that it is in the

child's best interest to modify such arrangement.    See Hand v.

Hand, 
391 N.J. Super. 102, 105 (App. Div. 2007).    To determine

whether a party has made a prima facie showing of changed

circumstances, the court must consider the terms of the order or

judgment it is asked to modify and determine if there has been a

change of circumstance since the entry of such order or

judgment.

    We will not disturb a trial court's fact-finding if

supported by "adequate, substantial, credible evidence."      Cesare

v. Cesare, 
154 N.J. 394, 411-12 (1998) (citing Rova Farms

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

We accord similar deference to a trial court's determination

that a party has failed to establish a change in circumstances

warranting modification of child custody arrangements; we review

such determinations for an abuse of discretion.    Costa v. Costa,


440 N.J. Super. 1, 4 (App. Div. 2015).

    Here, the parties' October 6, 2015 consent order was the

most recent best interests' determination.   See Todd, 
268 N.J.

Super. at 398.   That determination was defendant be the primary
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caretaker.   The trial court found plaintiff failed to show there

had been a change in circumstances since the entry of that

consent order, and thus denied his request he be designated the

primary caretaker.   Plaintiff does not challenge that particular

determination.    His argument is that, before the parties entered

into the consent order, Dr. Silikovitz determined he should be

the primary caretaker.

    Plaintiff does not appreciate Dr. Silokovitz' opinion was

subject to challenge, and one of the purposes of the plenary

hearing was to test that opinion.     But before Dr. Silokovitz was

called as a witness, the parties settled and agreed defendant

would remain the primary caretaker.    Thus, as a practical

matter, Dr. Silokovitz' opinion no longer has any value as his

report predates the existing order and cannot now serve to

establish a prima facie case of changed circumstances.

Therefore, because plaintiff did not show a change of

circumstances following entry of the consent order that

warranted a transfer of custody, the trial court appropriately

rejected his request custody of the child be transferred to him.

    We turn to plaintiff's contention about after-school care

expenses.    He argues such expenses are extracurricular

activities, and the PSA states he need not contribute to such

expense unless he agrees.   We disagree after-school care is an
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extracurricular activity.   Unless there are circumstances that

excuse a parent from paying child support, a parent must

contribute to work-related day care expenses.   See Child Support

Guidelines, Pressler & Verniero, Current N.J. Court Rules,

Appendix IX-A to R. 5:6A, www.gannlaw.com (2018).   There was no

evidence plaintiff was relieved of this duty.

    We have considered plaintiff's remaining arguments and

conclude they are without sufficient merit to warrant discussion

in a written opinion.   R. 2:11-3(e)(1)(E).

    Affirmed.




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