O.M. VS. M.Y.W. (FD-18-0357-18, SOMERSET COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5697-17T2

O.M.,

Plaintiff-Respondent,

v.

M.Y.W.,

Defendant-Appellant.

Argued July 9, 2019 – Decided July 31, 2019

Before Judges Hoffman and Currier.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket No. FD-18-0357-18.

Elizabeth M. Foster-Fernandez argued the cause for
appellant (Eveland & Foster, LLC, attorneys; Elizabeth
M. Foster-Fernandez and Jason D. Eveland, on the
briefs).

Scott J. Capriglione argued the cause for respondent.

PER CURIAM
 Defendant M.W.1 appeals from an August 8, 2018 order establishing

custody and parenting time for the parties' then six-year-old child. Because the

order was entered without regard to the parties' agreement to conduct a parenting

evaluation of the child and without conducting a plenary hearing to resolve the

disputed facts, we reverse.

The parties, never married, had a child together in December 2011. The

parties separated five months after the child's birth, and for the next five years,

the child lived with defendant and spent every other weekend with plaintiff O.M.

In September 2017, plaintiff moved to the same town where defendant and the

child resided, and he requested to spend more time with his son.

When the parties could not agree on a revised custody arrangement,2

plaintiff filed an application for shared custody on an equal basis. This was the

first time the parties had requested judicial intervention regarding their child.

Defendant opposed the application, seeking to continue the status quo

arrangement, and requesting child support.

In March 2018, the parties executed a comprehensive consent order

regarding custody and parenting time. Pending a custody evaluation, defendant

1
We use initials to preserve the confidentiality of the family. R. 1:38-3(d)(13).
2
Defendant agreed to increased parenting time, but not to shared custody.
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was designated as the parent of primary residence, the parties shared joint legal

custody, plaintiff was accorded additional parenting time, a holiday schedule

was set, and child support and extracurricular expense responsibilities were

established. Each party was given the opportunity to retain a custody expert in

"preparation of a Best Interest Custody Evaluation and Report." Case

management orders in April and May 2018 set discovery deadlines.

On May 24, 2018, the parties informed the court of their agreement to

retain a joint custody expert "to resolve the outstanding issues regarding custody

and parenting time." On June 14, 2018, the parties advised the court that their

settlement discussions and court mediation had been unsuccessful. However,

they had agreed on the joint custody expert and were arranging for his retainer.

In an inexplicable response to the parties' June 14 letters, the Family Part

judge sent an email to counsel advising "there [was] no longer a genuine and

substantial dispute of material fact warranting a full plenary hearing." In

determining that a hearing was not necessary to set a parenting time plan, the

judge vacated the previous case management orders and scheduled a

modification hearing for later that month "at which time the outstanding terms

regarding parenting time w[ould] be addressed and disposed of on the record."

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The judge denied defendant's subsequent order to show cause application

requesting the reinstatement of the case management orders.

During a case management conference in July, defendant's counsel

reminded the court of the information in defendant's certification describing the

child's behavioral and academic issues, his diagnosis of ADHD, the school's

referral to a child psychologist, and the child's fear that plaintiff would "pop[]"

him as a form of discipline. Defendant requested the court permit the parties to

continue with their agreed upon plan to engage a joint custody evaluator.

Instead, the court decided to interview the child. Several days later the

judge spoke with the child for twenty minutes, inquiring whether he liked school

and summer camp. She also asked him numerous times if he wanted to spend

more time and have more sleepovers with plaintiff to which the child responded

that he enjoyed spending time with plaintiff and would like to see him more. He

also described his father hitting him on the "butt" when he was not listening and

that it hurt.

When the parties returned to court in August, the judge described her

impressions of the child from her interview. She found his description of

plaintiff's discipline "cute and funny" and expressed her belief that there was

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nothing wrong with limited corporal punishment because she was exposed to the

same by her own parents.

In addressing defendant's concerns about the child's behavioral issues and

the school's observations and recommendations, the judge replied, "He is, in my

view, not as bad as everybody perceives him to be." She reiterated that there

were no material issues of fact requiring a plenary hearing. After a lengthy back

and forth discussion with counsel, and the judge's questioning of plaintiff, she

issued a final custody and parenting time order according plaintiff five

overnights every other week and two dinners on the alternate week.

On appeal, defendant argues that the court erred in making an award of

custody and parenting time without permitting discovery, expert evaluation, and

a plenary hearing. We agree.

It is well-established that the family court must conduct a plenary hearing

in a contested custody matter where the parties present materially divergent

representations of fact. See J.G. v. J.H., 457 N.J. Super. 365, 372 (App. Div.

2019). As we have stated,

A court, when presented with conflicting factual
averments material to the issues before it, ordinarily
may not resolve those issues without a plenary hearing.
While we respect the family court's special expertise, a
court may not make credibility determinations or

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 resolve genuine factual issues based on conflicting
affidavits. . . .

Moreover, 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, 137-38 (App.
Div. 2014) (citations omitted).]

Plaintiff's application requested the court make an initial custody

determination. Although the parties had attempted to work together regarding

custody and parenting issues, they reached a dead end when plaintiff moved closer

to defendant's residence and asked for more parenting time. His filing to the court

requested a shared custody arrangement – 50/50. Thereafter, the parties proffered

materially conflicting certifications regarding the child's behavior, academic issues,

medical diagnoses, and methods of discipline. They agreed both on the necessity of

an expert custody evaluation and on a joint expert.

The family judge erred in disregarding the parties' desire and need for a

custody evaluation. The judge also erred in vacating the prior case management

orders and in determining, without substantiating reasons, that there were no longer

any material factual issues.

The judge entertained counsels' oral argument, but then questioned plaintiff

without cross-examination. She did not ask defendant any questions. Her twenty-

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minute interview of a six-year-old child is not a substitute for expert evaluation.

Although the judge did consider the factors under N.J.S.A. 9:2-4 in making her

custody determination, she only relied on her own life experiences and judgment.

Without permitting the exchange of discovery, expert evaluation and testimony, and

the testimony of the parties, the judicial decision lacks an evidential basis, and cannot

stand. See Fusco v. Fusco, 186 N.J. Super. 321, 327 (App. Div. 1982) (holding a

parenting time decision "made without an evidential basis, without examination and

cross-examination of lay and expert witnesses . . . is untenable in the extreme").

As a result, we are constrained to vacate the custody order and remand to the

Family Part for a custody analysis to determine the best interests of the child,

permitting a custody evaluation, expert and lay testimony, and a consideration of the

N.J.S.A. 9:2-4 factors.

Reversed, vacated, and remanded for proceedings in accordance with this

opinion. We do not retain jurisdiction.

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