J.G. v. J.H., 457 N.J. Super. 365 (App. Div. 2019). Though many cases involving child custody arise out of divorce proceedings, other such cases occur in other settings. In the Appellate Division’s first published opinion of 2019, issued today by Judge Koblitz, the panel dealt with one of those other situations and provided a detailed lesson in proper procedure for such cases.
“John,” the child in question, was born in 2012 to “Jane” and “Joseph,” who were not married. In 2014, an FD order for joint legal custody, with Jane getting primary residential custody and Joseph receiving “generous parenting time,” was entered by consent. Jane and Joseph thereafter tried to reconcile, and they agreed on a flexible shared-parenting time schedule.
But Jane and Joseph’s relationship soured. Jane began a new relationship and became pregnant. Joseph sought an order to show cause seeking sole custody of John, alleging that John had been left alone with Jane’s fiance, whom Joseph claimed was a “well known drug user” and a “convicted felon with multiple prison sentences.” The Family Part denied that order to show cause, but granted Joseph temporary sole physical custody of John, pending further proceedings on Joseph’s application, due to the “potential for violence in [Jane]’s home.” That court then denied a request by Jane for emergent relief, Jane having claimed that John was being harmed by being separated from her.
When the matter came on for a full hearing, Jane appeared with counsel. A different Family Part judge went back and forth in questioning Jane and Joseph. The judge essentially did not allow Jane’s counsel to participate and denied the request of Jane’s counsel that the matter be put on the complex track, pursuant to Rule 5:5-7(c) in order to allow for discovery. The judge rejected discovery because this was an FD matter, not a divorce.
The result of the hearing was an order for joint physical and legal custody, with Joseph given primary residential custody. The judge’s oral order about the scheduling for parenting time was contradicted in part by the written order that was eventually entered. Finally, other than to say, in response to Jane’s objection that John’s life was being disrupted, that John had “already been uprooted,” the Family Part did not provide reasons for its ruling.
Judge Koblitz found numerous errors in what transpired, beginning with the period prior to the hearing. “As with other custody matters, prior to a plenary hearing, the parties should have been sent to mediation, Rules 1:40-5 and 5:8-1, and, if they were unable to resolve the issues, they should have been required to submit a Custody and Parenting Time/Visitation Plan pursuant to N.J.S.A. 9:2-4(e), Rule 5:8-5(a) and Luedtke v. Shobert (Luedtke), 342 N.J. Super. 202, 218 (App. Div. 2001).” A Social Investigation Report was required where “conflicting information regarding which parent can serve the long term best interest of the child is presented before the court but the psychological fitness of both parties is not in question.”
Furthermore, it was error to deny discovery merely because this was not a divorce action. “Whether the case is designated as complex or handled as a summary action, Family Part judges have broad discretion to permit, deny, or limit discovery in accordance with the circumstances of the individual case.” Judge Koblitz found it improper to deny discovery without a real explanation for doing so.
The hearing, Judge Koblitz said, “did not constitute a plenary hearing. The motion judge asked the parents questions, going back and forth between them. He did not allow Jane’s counsel to participate meaningfully in the proceedings. The parents were not given an opportunity to exchange discovery, retain an expert witness, call witnesses or cross-examine each other.” Jane’s counsel “was repeatedly rebuffed.” The Family Part even announced that he was “relaxing the rules of evidence” when Jane’s counsel objected to Joseph’s testimony about Jane’s fiance’s allegedly threatening Facebook posts.
Finally, the Family Part “also erred by failing to make fact-findings and apply those facts to the custody factors provided in N.J.S.A. 9:2-4(c).” Nor did that court consider John’s best interests, as required. Reversing the decision below, and “in an excess of caution, because this judge may have formed a view of the situation through these proceedings,” the panel remanded the case for further proceedings before a different judge.