Opinion
DOCKET NO. A-0146-15T1
04-08-2016
T.M., Plaintiff-Appellant, v. J.M.S., Defendant-Respondent.
Charles P. Cohen, attorney for appellant. J.M.S., respondent pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Vernoia. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FD-07-002353-11. Charles P. Cohen, attorney for appellant. J.M.S., respondent pro se. PER CURIAM
Plaintiff T.M. and defendant J.M.S. are the unmarried parents of a daughter, M.S. Plaintiff appeals from the July 6, 2015 Family Part order denying her motion to regain residential custody of M.S., and from the August 18, 2015 order denying her motion for reconsideration. For the reasons that follow, we reverse and remand.
We use initials to protect the privacy of the minor child.
M.S. is now seven years old. When she was born in 2008, the parties resided together in Belleville, but they separated in 2010. In November 2010, plaintiff filed the first in what would become a series of motions filed by both parties relating to the custody, support, and parenting time of M.S. A review of court records indicates that the parties were unable to resolve even their most fundamental disagreements regarding the child, and they sought court intervention whenever there was such a disagreement.
For example, in February 2012, the parties sought court resolution as to whether a paternal or maternal uncle could have visitation with the child.
On January 4, 2011, an order was entered granting residential custody of M.S. to plaintiff and requiring defendant to pay child support of $93 per week plus arrears.
In 2014, plaintiff was accepted into the New Jersey State Police (NJSP) Academy. Beginning in September 2014, plaintiff was required to stay at the NJSP training site in Sea Girt on weekdays for approximately six months. In anticipation of not being able to care for M.S. during the time she would be away, plaintiff invited her mother, D.D.B., and defendant's mother, T.S., to stay in her house and care for M.S. Even though she already had an order granting her residential custody, plaintiff filed a motion seeking "to delegate her residential custody interest to the child's grandmother" while plaintiff was away at the NJSP academy. By this time, defendant had moved from Belleville to Jackson, and was living with another woman with whom he had a second child.
On October 27, 2014, a Family Part judge heard argument on plaintiff's motion. Even though defendant had not sought custody, the judge indicated that if plaintiff was unavailable to care for M.S., even for this brief period of time, the judge intended to transfer residential custody to defendant. By this time, plaintiff had already completed approximately two months of training at the NJSP academy and asked the judge if she could keep custody of her daughter if she resigned. The judge responded
if you were to resign and you were available to parent her Monday through Friday then at that point there would be no change in circumstances and it would just be a question of dad having weekends to spend with [M.S.]. Pick up from school, drop off on school on Monday.
. . . .
[I]f the mother withdraws from the academy and returns to her home and the child is continuing to go to school from the home and the mother is there as the parent of residential custody, which she has been up
until now, then she withdraws her application and that's the end of it.
Although the judge offered plaintiff a continuance to decide whether to withdraw her motion, plaintiff gave no further indication that she was inclined to resign from the academy, and the judge entered an order that day transferring residential custody of M.S. to defendant. Plaintiff was granted weekend parenting time from Friday afternoon until Sunday evening. After custody of M.S. was transferred to him, defendant enrolled her in a half-day kindergarten program in Jackson.
In December 2014, defendant filed a motion seeking child support from plaintiff and a modification of her parenting time. By this time, plaintiff had left the academy without graduating and she cross-moved for return of residential custody of M.S.
On February 10, 2015, the pro se parties appeared before the judge. Even though the judge had previously indicated that plaintiff's resignation from the academy would result in the return of custody, the judge criticized the parents for treating M.S. like a "little football that could be tossed back and forth by her parents at their will." The judge then denied plaintiff's motion without a hearing, solely on the basis that the child had changed schools as a result of the October 27, 2014 order and it was not in the child's best interest to change schools again. Plaintiff was ordered to pay weekly child support of $112, retroactive to December 10, 2014. The judge suggested that if the parties could not agree on custody, they could return to court, but cautioned that they should do so "early enough so that a decision can be . . . made before the next school year starts in September."
Consistent with the judge's admonition, plaintiff filed her second motion for custody on May 12, 2015. On June 8, 2015, a different judge ordered the Probation Department to conduct a "best interest investigation . . . on the residences of both parties," and a "full investigation . . . on any and all individuals who reside in the households."
On July 6, 2015, the second judge heard argument on plaintiff's motion. Plaintiff, who was now represented by counsel, had re-married and she and her husband were about to purchase a house. She was not working, and was able to care for M.S. on a full-time basis. Plaintiff presented a plan to send M.S. to a private school in Montclair, close to where plaintiff would be living. Plaintiff claimed the private school was superior to the school M.S. attended in Jackson, as it had smaller class sizes and a more attractive academic curriculum. Plaintiff offered to pay the entire tuition of approximately $10,000 per year.
Defendant conceded that a private school "should" provide a better education, but argued that M.S. was "happy" at the Jackson school and doing well there.
In further support of her application, plaintiff, who is black, provided copies of text messages from defendant, who is white, containing vulgar language and racial slurs. Defendant did not deny sending the text messages but argued the undated messages were too old to be relevant. Plaintiff also presented a letter written and signed by defendant's mother, T.S., indicating that defendant was emotionally unstable and had engaged in criminal activities.
The court provided the parties with a copy of the best interests report done by Probation. In the report, defendant denied any prior use of drugs or criminal history. Plaintiff claimed that those representations were false as defendant had convictions for driving while intoxicated (DWI) and had used cocaine in the past. When questioned by the judge, defendant acknowledged that he had two convictions for DWI, one when he was eighteen and a second from 2011. Plaintiff also claimed that defendant's residence was not big enough and that M.S. had to share a bedroom with defendant's infant son.
In summary fashion, the judge recited the statutory factors under N.J.S.A. 9:2-4 and determined there had been no change in circumstances to warrant a change of custody. The judge never mentioned the offensive text messages, the conceded academic advantages of the proposed private school, defendant's false denial of a criminal record, the confined living arrangements in defendant's home, or the circumstances that prompted the first judge to change custody. The judge also ignored the claims that defendant had used drugs and was mentally unstable.
Plaintiff's counsel then requested that the judge withhold a final decision until defendant's mother and other witnesses could testify. Plaintiff argued that the October 2014 order was intended to be a temporary change, only until she completed the NJSP academy, and cited specific statements by the first motion judge to support that claim. Plaintiff stated that she relied on the first judge's suggestion that the custody transfer was only temporary and would have resigned immediately from the academy had she realized she would not regain custody.
Even though the judge had not heard testimony from her, he determined that the allegations contained in the letter from defendant's mother were not credible. Without any specific reference or explanation, the judge also found that "plaintiff said a lot of things that were not true." Although no witnesses had testified, the judge remarkably declared: "The case is over. Everyone had the opportunity to call witnesses. And they . . . called their witnesses. And the case is over." Without further comment, the judge entered an order denying plaintiff's motion for a change in custody.
Plaintiff moved for reconsideration and the parties appeared on July 30, 2015. Plaintiff's counsel actually introduced copies of the text messages he had previously referenced. In those texts, defendant referred to plaintiff using numerous racial slurs and ethnic stereotypes. We are loathe to reproduce these offensive comments in our opinion, but note that in these text messages defendant repeatedly referred to plaintiff using racial slurs and employed patently offensive racial stereotypes.
Plaintiff testified and called three witnesses. Defendant's mother, T.S., identified the letter she wrote to the judge and confirmed that the contents were accurate. T.S. explained that she was living in North Carolina in 2014 when plaintiff asked her to come to New Jersey to help care for M.S. while plaintiff was attending the academy.
T.S. described an incident in August 2014, prior to the change in custody, when defendant was dropping M.S. off at plaintiff's residence in Belleville. T.S. went to meet the child and told defendant that plaintiff was not available. Defendant refused to leave M.S. with T.S. and called his mother a "bitch" and a "cunt" in front of the child before pulling M.S. back into his car. The child began to cry hysterically and defendant's girlfriend, who was also in the car, called the police.
T.S. described a second incident after plaintiff entered the academy. Defendant was supposed to pick M.S. up at her school in Jackson but apparently refused because of "numerous confrontations . . . prior to this." When T.S. attempted to take the child along with one of her classmates, defendant objected and told M.S. not to go with her. Most troubling is T.S.'s testimony that defendant told the child, in front of teachers, other parents, and young classmates: "Your Nana hates you. Your grandmother hates you. Your mother is just a . . . nigger and a cunt."
T.S. explained that defendant objected to the way she occasionally styled M.S.'s hair and told her he did not want her hair braided. The child expressed concern to T.S. that her father would get mad if she returned to him with braids.
T.S. described plaintiff as a "phenomenal mom," and drew a sharp contrast between the "family time" M.S. enjoys with plaintiff and the child's time with defendant, who has cut off contact with most family members. T.S. also testified that defendant has attempted to alienate the child from her and plaintiff, while plaintiff has never disparaged defendant in front of the child. T.S. testified that defendant suffered from mental health issues, attempted suicide, and spent five or six weeks in a mental hospital.
Plaintiff then called her mother, D.D.B., who described an incident in September or October 2014 when defendant picked M.S. up at plaintiff's apartment. As T.S. and D.D.B. were walking the child to defendant's car, he spoke disparagingly about T.S. in front of the child. On other occasions, defendant yelled at D.D.B. in front of the child. Most disturbingly, D.D.B. testified that in early 2015, she overheard defendant criticize a hairstyle plaintiff gave M.S., using a racial slur to describe the child's hair.
D.D.B. testified that when plaintiff and defendant discussed M.S. over the phone, plaintiff would ask D.D.B. to take the child out of the room as defendant's comments are "never anything positive. It's always negative . . . always [derogatory and] racial." In contrast, D.D.B. said plaintiff does not ever resort to "bad mouthing" defendant and tries to "enhance" him.
Plaintiff next called her sister, T.A., who testified to multiple contentious pick-up and drop-off incidents. T.A. described an incident that occurred after defendant dropped M.S. off at plaintiff's house. As T.A. was walking the child back from defendant's car, he referred to M.S.'s hair, in the child's presence, as "nappy" and having "niglet naps." T.A. also testified to defendant's inflexibility and refusal to pick up or drop off M.S. at her dance class or bowling league, affecting the child's participation in these activities.
Defendant testified and tellingly, he did not deny sending the offensive text messages or making the racially insensitive comments about his daughter's hair.
The judge reserved decision and indicated he would mail a written decision to the parties. No decision was ever filed. Rather, the judge entered an order on August 18, 2015, denying plaintiff's motion for reconsideration for "the reasons stated on the record." No reasons were ever stated on the record.
N.J.S.A. 9:2-4(f) states clearly that, in child custody proceedings, "[t]he court shall specifically place on the record the factors which justify any custody arrangement not agreed to by both parents." The judge must state the reasons for a custody decision on the record and "reference the pertinent statutory criteria with some specificity[.]" Kinsella v. Kinsella, 150 N.J. 276, 317 (1997) (quoting Terry v. Terry, 270 N.J. Super. 105, 119 (App. Div. 1994)).
Because the motion judge made no findings after being presented with extensive testimony that, if credible, raises serious questions as to defendant's fitness to parent M.S., we are compelled to remand for a plenary hearing. We provide the following guidance.
The determination by the first motion judge that plaintiff's temporary residence at the NJSP academy required a change in residential custody was error. See Faucett v. Vasquez, 411 N.J. Super. 108, 111 (App. Div. 2009) (finding no presumption that modification of custody is warranted solely because parent of primary residence is deployed), certif. denied, 203 N.J. 435 (2010). Plaintiff had adequately provided for the care of M.S. during her absence by having the child's paternal and maternal grandmothers move into her house, and the arrangement had been in place without complication for two months at the time of the October 2014 hearing.
To the extent that plaintiff's temporary absence was considered a change of circumstances to support the first change of custody, so too should plaintiff's departure from the academy and return home in December 2014 have been similarly considered when plaintiff sought to regain residential custody two months later. The motion judge's finding that it was not in M.S.'s best interests to be returned to her mother, with whom she had lived all of her life, because it would entail her removal from a half-day kindergarten program she had attended for only two months, was unreasonable and unsupported by evidence in the record.
Similarly, after plaintiff's first motion for custody was denied and she followed the judge's direction and renewed her motion well in advance of the beginning of the next school term, the judge's finding that plaintiff had failed to demonstrate changed circumstances is inconsistent and contrary to the judge's prior finding.
Far more troubling is the judge's complete disregard of the testimony of T.S., D.D.B., and T.A., which, if believed, paints a disturbing picture of defendant directing racism and bigotry at his seven-year-old daughter. To make hateful, racially insensitive remarks to plaintiff may be explained as a byproduct of a failed, and dysfunctional relationship; to make such remarks in front of defendant's mixed-race child defies explanation. We find it particularly disturbing that the judge not only ignored this troubling behavior by defendant, but also failed to consider whether it had an adverse effect on the child.
We note the testimony that defendant's criticism of M.S.'s hair has apparently made her reluctant to wear her hair in braids because "daddy is going to get mad." The remand judge should determine whether defendant's abusive and insensitive remarks have had an adverse effect on M.S., and whether defendant attempted to smother M.S.'s ethnic identity to serve his own bigotry and intolerance.
It has been almost eighteen months since plaintiff lost custody of M.S. As often happens, "a temporary decision to change custody can take on a life of its own, creating a new status quo." Peregoy v. Peregoy, 358 N.J. Super. 179, 203 (App. Div. 2003). To ensure that this matter is promptly resolved, we direct that a scheduling conference be held within thirty days of our opinion, and a full plenary hearing completed within sixty days thereafter.
The second motion judge conducted an in camera interview of M.S. prior to the July 30, 2015 hearing, when the child was six years old. Because the judge failed to record or transcribe the interview in violation of Rule 5:8-6, and incorrectly concluded that the child's preference "doesn't matter . . . because she's too young," we note the following:
The age of the child certainly affects the quantum of weight that his or her preference should be accorded, but unless the trial judge expressly finds as a result of its interview either that the child lacks capacity to form an intelligent preference or that the child does not wish to express a preference, the child should be afforded the
opportunity to make her views known. We would think that any child of school age, absent the express findings we have indicated, should have that opportunity and that the judge would be assisted thereby.
[Lavene v. Lavene, 148 N.J. Super. 267, 272 (App. Div.), certif. denied, 75 N.J. 28 (1977).]
Should the remand judge elect to conduct another interview of M.S., Rule 5:8-6 requires that counsel, or the parties if appearing pro se, have the opportunity to submit questions for the court's use, and a stenographic or recorded record be made of the interview in its entirety.
Finally, because the second motion judge made credibility determinations of plaintiff and defendant's mother on July 6, 2015, without hearing testimony from either of them, we question the realistic possibility of an impartial hearing before the same judge on remand. Therefore, we direct that the remand hearing be conducted by a different judge.
The first motion judge has retired. --------
Reversed and remanded for proceedings consistent with our opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION