J.P. v. L.P.

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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1553-18T3






                   Submitted December 3, 2019 – Decided January 17, 2020

                   Before Judges Fisher and Rose.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Bergen County,
                   Docket No. FM-02-2853-14.

                   Sunshine, Atkins, Minassian, Tafuri, D'Amato &
                   Beane, PA, attorneys for appellant (Jay R. Atkins,
                   Stacey L. Miller and Christian L. Beane, on the briefs).

                   Dario, Albert, Metz, Eyerman, Canda, Concannon,
                   Ortiz & Krouse, attorneys for respondent (Shelley D.
                   Albert and Paul J. Concannon, on the brief).

     We use initials to protect the privacy of the parties.

      In this post-judgment dissolution matter, plaintiff ex-wife appeals one

paragraph of a multi-faceted Family Part order, denying her ability to relocate

with the parties' three unemancipated daughters to Illinois. The motion judge

denied plaintiff's application without prejudice pending the outcome of litigation

filed by the Division of Child Protection and Permanency (DCPP), which

restricted defendant ex-husband's visitation with the children. Because we

conclude the judge erroneously rejected plaintiff's application on that factor and

there exist disputed factual issues concerning the best interests of the children,

we vacate the order and remand for a plenary hearing.

      Our review of a Family Part order is limited. See Cesare v. Cesare,  154 N.J. 394, 412-13 (1998). Generally, the Family Part's factual findings "are

binding on appeal when supported by adequate, substantial, credible evidence."

Id. at 411-12. That traditional standard of review is expanded when the court

committed an alleged error in evaluating the underlying facts. MacKinnon v.

MacKinnon,  191 N.J. 240, 254 (2007). Challenges to legal conclusions, as well

as the trial court's interpretation of the law, are subject to our de novo review.

Ricci v. Ricci,  448 N.J. Super. 546, 565 (App. Div. 2017).

      Under  N.J.S.A. 9:2-2, a parent who seeks to remove a child from this State

when the other parent does not consent must demonstrate "cause" for the

removal. Our Supreme Court has interpreted "cause" as requiring the petitioning

parent to satisfy the best interests analysis set forth in the custody statute,

"supplemented by other factors as appropriate." Bisbing v. Bisbing,  230 N.J.
 309, 338 (2017) (citing  N.J.S.A. 9:2-4(c)). The statutory factors include:

            the parents' ability to agree, communicate and
            cooperate in matters relating to the child; the parents'
            willingness to accept custody and any history of
            unwillingness to allow parenting time not based on
            substantiated abuse; the interaction and relationship of
            the child with its parents and siblings; the history of
            domestic violence, if any; the safety of the child and the
            safety of either parent from physical abuse by the other
            parent; the preference of the child when of sufficient
            age and capacity to reason so as to form an intelligent
            decision; the needs of the child; the stability of the
            home environment offered; the quality and continuity
            of the child's education; the fitness of the parents; the
            geographical proximity of the parents' homes; the
            extent and quality of the time spent with the child prior
            to or subsequent to the separation; the parents'
            employment responsibilities; and the age and number
            of the children.

            [N.J.S.A. 9:2-4(c).]

      Against that legal backdrop, we turn to the facts pertinent to this appeal,

recognizing the protracted and highly contentious history, occasioned by media

coverage of the disputes between the parties. Relevant here, the parties married

in 2000 and divorced in 2017. Three children were born of the marriage in 2002,

2004 and 2011. For all but five years – when defendant played professional

football for a team based in Florida – the parties resided in New Jersey. Neither

party lived in New Jersey prior to the marriage; they lived in thi s State when

defendant played football for a New York area team.

      The judgment of divorce incorporated a consent order, which granted both

parties joint legal and residential custody of the children, and designated

plaintiff as the parent of primary residence.      Sometime thereafter, DCPP

commenced an investigation of defendant for reasons that are unspecified in the

record. As a result of that investigation, defendant's parenting time with the

children was limited to supervised visitation.

      Claiming the ongoing DCPP action rendered her a "de facto sole custodial

parent," plaintiff moved for permission to relocate with the children to Chicago,

where her parents and extended family reside and a job opportunity at her

father's car dealership awaits her. Plaintiff's application included undated text

messages – purportedly from the children – that described defendant's drug use,

court records related to defendant's harassment charges, and academic

performance data for the schools the children would attend in Illinois.

      Defendant filed a dueling certification, contending plaintiff's "application

[wa]s a mere continuation of the [s]corched [e]arth policy and her efforts to

extend beyond divorce to permanently deprive [their] children from a

relationship with [him], as well as to financially devastate [him] and any future

prospects of employment."        According to defendant, plaintiff failed to

demonstrate relocating to Chicago would be in the best interests of the children,

who have lived in New Jersey for most of their lives, and plaintiff "demonstrated

zero effort" to find employment in New Jersey.

      Following argument, the motion judge rendered a terse oral decision

concerning the present issue, summarily finding plaintiff failed to meet some of

the Bisbing factors. In sum, the judge noted:

            And to say that I should allow a relocation because
            [plaintiff]'s got family in Chicago and [the children
            would] be better protected there than here, and
            [plaintiff] has a job in Chicago waiting for her, those
            really are not good enough reasons under . . . Bisbing
            for this [c]ourt to consider relocation without any
            further indicia that it would be in the children's best

      But, the judge ultimately refused to consider plaintiff's application

because the DCPP litigation – over which she also presided – was pending and

restricted defendant's contact with the children to supervised visitation. The

judge elaborated:

            More importantly and more to the point, because
            DCP[]P is involved, [defendant]'s contact . . . with the
            children is currently restrained and supervised. Any
            move would severely impact his contact with the
            children and to the detriment, not of [defendant and
            plaintiff], but these kids, because . . . [defendant] would
            be restricted from having the supervises [sic] that he
            has in place in the State of New Jersey, from
            supervising the children there . . . . [H]is parents or
            maybe just his mother also [is] authorized to supervise,
            but they live in the State of Delaware.

This appeal followed.

      On appeal, plaintiff argues the motion judge abused her discretion by

failing to conduct a best interests analysis in light of the pending DCPP matter,

and the judge improperly considered that factor because it is not expressly stated

in  N.J.S.A. 9:2-4(c). Plaintiff seeks a plenary hearing to resolve the factual

disputes between the parties.

      We recognize "the geographical proximity of the parents' homes" is one

factor to consider in the best interests analysis.  N.J.S.A. 9:2-4(c). But, there is

no authority to support the judge's decision that this factor is wholly dispositive

of the best interests analysis, or defendant would be precluded from supervised

visitation with the children in Chicago, pending the outcome of the DCPP

litigation. Family courts in other states often assist our state in the enforcement

of custody orders. 2 We therefore discern no reason for the Family Part to delay

consideration of plaintiff's application until the DCPP matter has concluded.

The motion judge is fully familiar with the pending DCPP matter. Accordingly,

she can direct DCPP to determine the viability of its counterpart in Illinois to

assist with defendant's supervised visitation of the children in that state.

      Turning to the need for a plenary hearing, it is beyond peradventure that

a testimonial hearing is necessary when a genuine issue exists as to a material

fact. "[A] plenary hearing is particularly important when the submissions show

there is a genuine and substantial factual dispute regarding the welfare of

children." K.A.F. v. D.L.M.,  437 N.J. Super. 123, 138 (App. Div. 2014). A

court should not "make credibility determinations or resolve genuine factual

issues based on conflicting affidavits." Ibid. Failure to conduct such a hearing

is reversible error. Id. at 137-39.

   Both New Jersey and Illinois have adopted the Uniform Child Custody
Jurisdiction and Enforcement Act. See  N.J.S.A. 2A:34-53 to -64;  750 Ill. Comp.
Stat. 36/101 to -36/405. Relevant here, "[a] court of [Illinois] may utilize any
remedy available under [an]other law of [Illinois] to enforce a child-custody
determination made by a court of another state."  750 ILCS 36/303. And similar
to New Jersey, Illinois has established the Department of Children and Family
Services, which "perform[s] child custody investigations" and "supervise[s]
parents to assess whether or not the custody or visitation judgments rendered by
the court are being carried out." Ill. Admin. Code tit. 89, § 330.1.
      Because the parties submitted diametrically opposed certifications, we

agree with plaintiff that a plenary hearing is necessary to resolve the disputes

between the parties. As one example, plaintiff claimed defendant failed to

exercise parenting time, while defendant alleged plaintiff consistently attempted

to interfere with his relationship with the children. Also, resolution of the best

interests factors will require credibility determinations that cannot be gleaned

from the certifications and supporting documents submitted by the parties .

      In evaluating the best interests factors, the motion judge may consider the

insights of the parents of primary residence and alternate residence, "[t]he views

of other adults with close relationships with the child," and "other evidence,

including documentary evidence, interviews with the children at the court's

discretion, and expert testimony." Bisbing,  230 N.J. at 335; see also R. 5:8-6

("As part of the custody hearing, the court may on its own motion or at the

request of a litigant conduct an in camera interview with the child(ren).").

      Plaintiff's remaining contention that the motion judge improperly

considered the pending DCPP matter lacks sufficient merit to warrant discussion

in our written opinion. R. 2:11-3(e)(1)(E). We simply note as stated above,

 N.J.S.A. 9:2-4(c) expressly permits the Family Part to consider other factors

aside from those listed in the subsection, which the Court recognized in Bisbing.

 230 N.J. at 335.

      Reversed and remanded. We do not retain jurisdiction.


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