JENNIFER STEVENS v. AMIR SHAH (2013)

Plaintiff Jennifer M. Stevens appeals from a November 14, 2012 order of the Family Part which continued joint legal custody of the parties' child, but awarded temporary physical custody of the child to defendant Amir A. Shah. We reverse and remand.

I.

We briefly summarize the relevant procedural history and the facts based on the record before us.

The child was born in September 2007.   Plaintiff and defendant were never married.   Plaintiff lives in Ohio and defendant lives in New Jersey.   Pursuant to an August 8, 2008 judgment, the parties shared joint legal and physical custody of the child, alternating physical custody on a two month basis.   The judgment reflected that this arrangement would continue until the child entered kindergarten, at which time the parties had to reevaluate the custody arrangement.   The child was due to enter kindergarten in September, 2012, but the parties failed to address the child's place of residence whether it be Ohio or New Jersey.

On July 10, 2012, defendant filed an application for a modification of custody and parenting time seeking to be designated the parent of primary residence.   On August 20, 2012, plaintiff filed a cross-application seeking denial of defendant's application, granting her residential custody of the child, ordering a best interest evaluation, and scheduling of a plenary hearing.

On August 31, 2012, the motion judge issued an order that the Essex Vicinage Family Division conduct a best interest investigation as to the child.   On November 5, 2012, the judge held a motion hearing and took testimony from the parties.   On November 14, 2012, the judge issued an order stating:

For reasons stated on the record, joint legal custody of the child shall continue with [plaintiff] and [defendant].   Temporary physical custody of the child shall remain with the [defendant].   The child shall remain in the Union School System.   The [plaintiff] is granted liberal parenting time with the child.   The parties shall agree upon a date and times for parenting time.

It is from that decision that plaintiff appeals.

II.

In this appeal, plaintiff argues that reversal is required because the judge failed to order a full best-interests analysis and a plenary hearing.   We agree that the judge erred in failing to conduct a best-interests analysis and by not making findings of facts or preparing a statement of reasons, and that therefore, a remand is necessary.

In making custody determinations, “it is well settled that the court's primary consideration is the best interests of the children.”  Hand v. Hand, 391 N.J.Super. 102, 105 (App.Div.2007) (citing Kinsella v. Kinsella, 150 N.J. 276, 317 (1997)).   In particular, when a party seeks to modify a custody arrangement, he or she “must demonstrate changed circumstances that affect the welfare of the children.”  Ibid.;  see also Borys v. Borys, 76 N.J. 103, 115–16 (1978).

To assess the best interests of the child, a court must consider the factors set forth in N.J.S.A . 9:2–4(c).  Those factors are:

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.

The court must both consider these statutory factors and “must also make a record referencing the statutory factors it has considered and the reasons for its custody determination.”  J.A. v. A.T., 404 N.J.Super. 132, 145 (App.Div.2008) (citing Gubernat v. Deremer, 140 N.J. 120, 139 (1995)).   When it fails to do so, a remand is required.   See, e.g., Luedtke v. Shobert, 342 N.J.Super. 202, 217–19 (App.Div.2001).

Here, the disposition of the custody and parenting time issues required consideration of the statutory factors and discussion by the judge.   The motion judge provided only a ruling, awarding temporary physical custody to defendant without providing any justification.   The judge did not cite any of the factors listed in N.J.S.A. 9:2–4(c) and failed to make any written or oral findings addressing the child's best interests or any changed circumstances.   A remand is thus required.

We reverse the November 14, 2012 order and remand this matter to the motion judge to make a record referencing the statutory factors she has considered and the reasons for her custody determination.   Our disposition of the appeal is without prejudice to any renewed motion for a change in custody based on grounds that were not available to the parties at the time of the motion judge's November 14, 2012 order.   We do not retain jurisdiction.

PER CURIAM