D.A. v. R.C.
105 A.3d 1103
| N.J. Super. Ct. App. Div. | 2014Background
- Parties had a 2002 Consent Order awarding joint custody with the child (born 1998) residing with mother and defendant receiving "reasonable and liberal" parenting time; no judicial modification for ~10 years.
- In late 2012 defendant filed to have the court recognize a de facto change: he claimed the child had been living with him (variously since 2010 or since summer 2012) and asked for custody/support adjustments; mother denied and alleged domestic-violence exposure at defendant’s home.
- Multiple Family Part conferences/hearings (Dec 21, 2012; Jan 10 & 17, 2013; Jan 24; Mar 18, 2013) were conducted informally with conflicting factual proffers but little admissible testimony or findings.
- The trial judge ordered a 50/50 split custody at a January 10 hearing but did not conduct an in-camera interview of the child, did not make statutory findings under N.J.S.A. 9:2-4, and did not formally refer the case to mediation under Rule 5:8-1.
- Defendant moved for reconsideration seeking mediation, an in-camera interview of the child (then 14, later 16 on remand), a plenary hearing and reassessment of custody/support; the motion judge denied relief and refused to interview the child.
- The Appellate Division reversed and remanded, instructing the trial court to refer the dispute to mediation, and if mediation fails, to hold a plenary hearing with statutory findings and to either interview the child under Rule 5:8-6 (or state reasons for not doing so).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court was required to refer custody/parenting-time dispute to mediation under Rule 5:8-1 | Mother opposed mediation and relied on enforcement of the 2002 order | Father argued Rule 5:8-1 required referral to mediation because custody/parenting time were genuine and substantial issues | Court: Rule 5:8-1 requires referral to mediation; remand to refer to mediation and monitor progress; if mediation fails, proceed to plenary hearing |
| Whether trial court should have held a plenary/evidentiary hearing before changing custody | Mother urged enforcement of existing order and limited relief; argued child compliance must be enforced | Father sought plenary hearing to resolve factual disputes and obtain custody recognition | Court: Absent exigent circumstances, custody changes require a plenary hearing; remand for plenary hearing if mediation fails |
| Whether trial court had to interview the child in camera under Rule 5:8-6 / consider child preference (N.J.S.A. 9:2-4(c)) | Mother objected to in-chambers interview (claimed trauma / inappropriate setting) and resisted judge interviewing child | Father requested the court interview the child or appoint an evaluator to assess the child's preference and maturity | Court: Under Rule 5:8-6 the decision is discretionary but, if the court elects not to interview, it must state reasons on the record; here judge failed to comply—remand to either interview the (now 16-year-old) child with counsel-submitted questions and create a transcript, or place on record why not |
| Whether the court should appoint an independent evaluator / use expert evidence for custody determination | Mother relied on contested factual allegations and enforcement of order; did not seek evaluator at bench | Father urged appointment of a neutral mental-health expert to evaluate child and parents | Court: Recommended appointment of a nonpartisan mental-health expert under Rule 5:3-3(b) as useful; but emphasized expert reports do not relieve judge of final factfinding and legal responsibility |
Key Cases Cited
- Kinsella v. Kinsella, 150 N.J. 276 (N.J. 1997) (best interests of the child is the guiding principle in custody disputes)
- Fantony v. Fantony, 21 N.J. 525 (N.J. 1956) (definition of "best interests"—safety, happiness, physical, mental and moral welfare)
- Cesare v. Cesare, 154 N.J. 394 (N.J. 1998) (appellate deference to Family Part discretionary decisions requires adequate, substantial, credible evidence)
- Beck v. Beck, 86 N.J. 480 (N.J. 1981) (child preference of sufficient age/capacity must be given due weight)
- Mackowski v. Mackowski, 317 N.J. Super. 8 (App. Div. 1998) (value and procedure for in-camera child interviews; judge must test bona fides of child’s stated preference)
- Faucett v. Vasquez, 411 N.J. Super. 108 (App. Div. 2009) (absent exigency, custody changes should not be ordered without a full plenary hearing)
- Peregoy v. Peregoy, 358 N.J. Super. 179 (App. Div. 2003) (trial court must place reasons on record when declining to interview child)
- Uherek v. Sathe, 391 N.J. Super. 164 (App. Div. 2007) (in-camera child interview privacy and transcript rules; restrictions on disclosure)