SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-0212-23

AMIM BUTT,1

 Plaintiff-Appellant, 

v.

MARIYAM KHALEEQUE, 

 Defendant-Respondent. 

_________________________

Submitted September 17, 2024 – September 30, 2024 

 

Before Judges Firko and Bishop-Thompson. 

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Mercer County, 

Docket No. FM-11-0329-18.

George G. Gussis, PA, attorneys for appellant (George 

G. Gussis, on the briefs). 

Law Offices of Andrew N. Yurick, attorneys for 

respondent (Andrew N. Yurick, on the brief). 

PER CURIAM 

1

 Sometimes referred to as "Amin" Butt in the record.

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-0212-23

 In this post-judgment matrimonial matter, plaintiff Amim Butt appeals 

from an August 24, 2023 Family Part order designating his ex-wife, defendant 

Mariyam Khaleeque, as the parent of primary residence (PPR) 2 for their 

daughter, A.N.,3 born in October 2017, and permitting the child to attend 

elementary school in the Cherry Hill School District. Plaintiff also appeals from 

the modification of his parenting time resulting in plaintiff having seventy-one 

less parenting days each year. 

 On appeal, plaintiff argues the judge: (1) erred in designating defendant 

the PPR for educational purposes; (2) abused her discretion in confirming 

defendant's enrollment of the parties' child in the Cherry Hill School District; 

(3) abused her discretion in modifying the parties' parenting schedule set forth 

in their marital settlement agreement (MSA) by finding a change of 

circumstances was created by allowing defendant to enroll the child in the 

2

 The Child Support Guidelines use the term ["PPR"] to denote "[t]he parent 

with whom the child spends most of his or her overnight time," or "[i]f the time 

spent with each parent is equal . . . the parent with whom the child resides while 

attending school." Child Support Guidelines, Pressler & Verniero, Current N.J. 

Court Rules, Appendix IX-A to R. 5:6A, www.gannlaw.com (2025). The 

Guidelines use the term "[p]arent of [a]lternate [r]esidence" to denote "the 

parent with whom the child resides when not living in the primary residence. " 

Ibid. 

3

 We use initials to protect the identity and confidentiality of the child. 
3 A-0212-23

Cherry Hill School District, reducing his parenting time from 182 days per year 

to 108 days per year; (4) erred in allowing the child to be enrolled in the Cherry 

Hill School District as it was not in the best interest of the child; (5) violated 

N.J.S.A. 9:2-4 when a change of circumstances was created by allowing 

defendant to enroll the child in the Cherry Hill School District; (6) erred in 

rewarding defendant the enrollment of the child in the Cherry Hill School 

District after finding her in violation of litigant's rights in not adhering to the 

requirement of the MSA to address the school issue at least one year before it 

became an issue; (7) demonstrated gender bias in allowing defendant to enroll 

the child in the Cherry Hill School District as opposed to the East Windsor 

School District; and (8) abused her discretion by ignoring defendant's living 

arrangement. 

 Based on our review of the record, plaintiff's arguments, and the 

applicable legal principles, we reverse the order under review and remand to the 

Family Part for a plenary hearing on all issues. 

I.

 In 2015, plaintiff returned to Pakistan and entered into an arranged 

marriage with defendant. The following year—2016—the parties were married 

in Pakistan. In October 2017, after returning to the United States, their daughter 
4 A-0212-23

was born. The following month, plaintiff filed a divorce complaint against 

defendant on the ground of irreconcilable differences. 

 A final dual judgment of divorce (FDJD) incorporated the parties' MSA, 

which was entered on July 25, 2018. The MSA provided that the parties would 

"share joint legal custody of the minor child of the marriage." The following 

parenting plan was set forth in the MSA: 

Effective August 1, 2019 the parties shall equally share 

custody with each having fifty percent . . . of each week 

and PHASE 4 [C]hild [S]upport [G]uidelines shall 

apply. Unless the parties agree otherwise in a writing 

signed by both of them, they shall follow a 2-2-3 

schedule so that in Week One [defendant] shall have

parenting time on Monday and Tuesday; [plaintiff] 

shall have parenting time on Wednesday and Thursday; 

and [defendant] shall have parenting on Friday, 

Saturday and Sunday; and in Week Two [plaintiff] shall 

have parenting time on Monday and Tuesday; 

[defendant] shall have parenting time on Wednesday 

and Thursday; and [plaintiff] shall have parenting on 

Friday, Saturday and Sunday. 

Additionally, the MSA required the parties "confer at least one . . . year before 

the child [was] due to enter kindergarten to discuss a choice of schools." The 

MSA provided that if the parties could not agree on the choice of a school, "they 

may attend mediation to attempt to resolve the issue or either party may bring 

an application to the [c]ourt." 
5 A-0212-23

 The parties disagree about whether there were prior communications 

discussing which school A.N. would attend. Nevertheless, the record contains 

an email from defendant to plaintiff that was sent on January 6, 2023, where 

defendant discussed enrolling A.N. in the Cherry Hill School District. In her 

email defendant stated: 

I am reaching out to you with the proposal to reconsider 

and ultimately resolve [A.N.'s] school decision and

residency accordingly. [A.N.] will be starting her 

[e]lementary school in September 2023. Many schools

have started their pre-registration including Cherry Hill 

school district. Below is the proposal on which we both 

can work and decide with our mutual consent: 

1. We can start working on [e]nrolling [A.N.] in Cherry 

[H]ill [S]chool [D]istrict with our mutual 

agreement. 

2. Considering [A.N.'s] best interest, I propose having 

[A.N. for her] school residence and you can have 

your parenting time during the alternate weekends 

and/or some evenings. I am suggesting this as it is [a 

forty-five-]minute drive from Cherry [H]ill to East

[W]indsor and with the traffic it is more than [fortyfive] minutes which will not be healthy for [A.N.] 

with regular school and our current time sharing. 

Please let me know by the next week how you think 

about it. 
6 A-0212-23

Plaintiff responded by recommending that A.N. attend the East Windsor School 

District—the district near his residence—instead so that "her home and school 

w[ould] be stable and consistent." 

 On May 18, 2023, defendant filed a motion seeking to enforce the parties' 

MSA, as well as permission to enroll the child in the Cherry Hill School District. 

In her moving certification, defendant stated that she lived in Cherry Hill and 

"specifically picked this location based on the high rating the Cherry Hill School 

District has in the State of New Jersey." Defendant also certified that she 

communicated with plaintiff that Cherry Hill was her preferred school district, 

and "pointed out to him that the East Windsor School District [. . .] is not even 

ranked in the State and has fewer options for [A.N.]." Defendant stated: 

For example, our daughter would be attending the 

Joseph D. Sharp Elementary School in Cherry Hill . . . . 

According to U.S. News and World Report [USNWR] 

on Education, Sharp Elementary School is ranked #47

in the State. The math proficiency rating is 82% and the 

reading proficiency is ranked at 87%. The report 

indicates that both math and reading performance for 

the school is "[w]ell [a]bove [e]xpectations." 

Defendant noted the comparison to Walter C. Black Elementary School, which 

is unranked, and shows a math proficiency rate of about 50% and a reading 

proficiency rate of about 54%. Additionally, defendant's certification requested 

the judge modify the parties' 50/50 timesharing agreement because the back and 
7 A-0212-23

forth traveling "as it stands is too much and would not be healthy for [A.N.] as 

she needs a regular bedtime and schedule." 

 On June 21, 2023, plaintiff filed a notice of cross-motion opposing 

defendant's motion and requesting that he be designated the PPR for school 

purposes. In his cross-moving certification, plaintiff stated he only discovered 

that defendant enrolled their daughter in the Cherry Hill School District on 

January 25, 2023, after a conversation with A.N. led him to contact the school. 

He certified that defendant "never ha[d] any discussion with [him] about the 

East Windsor school system not being up to par for [A.N.'s] education." Plaintiff 

noted that Walter C. Black Elementary School's rating on Niche 4is "A-" and it 

received an "A" in diversity and an "A+" in college prep.5

 Plaintiff also certified that he contacted the East Windsor School District 

and arranged for A.N.'s enrollment on June 14, 2023, going so far as to bring 

her to kindergarten orientation on June 19, 2023. Additionally, plaintiff avers 

that it is in A.N.'s best interest to be enrolled in the East Windsor School District 

4

 Niche is a website that provides rankings and reviews of kindergarten through 

twelfth grade schools, colleges, cities, neighborhoods, and companies across the 

United States. Niche.com, Crunchbase, https://www.crunchbase.com/organiza

tion/niche-com (last visited September 23, 2024). 

5

 Plaintiff omits that Niche also reports that Walter C. Black Elementary School 

had a reading proficiency rate of 57% and a math proficiency rate of 43%. 
8 A-0212-23

because A.N. would be around him and his family who are "fully 

Americanized," rather than be with defendant "in a Pakistani ethnic and religious 

bubble with limited socialization with non-Pakistanis outside of school." 

 On July 7, 2023, the judge briefly heard oral argument on the motions and 

reserved decision. On August 24, 2023, the judge issued an order and written 

decision. The judge granted defendant's motion and denied plaintiff's crossmotion. The judge found A.N. shall be enrolled in the Cherry Hill School 

District, with defendant being named the PPR, and that a modification of 

parenting time was necessary given the distance between the parties' homes and 

the need for the child to attend school in one district. 

 The judge determined that since defendant lived in South Jersey when the 

parties entered into the MSA, plaintiff should not have been surprised that 

defendant sought to have the child enrolled in a school district in South Jersey. 

The judge found that defendant's reason for moving to Cherry Hill after 

considering the education system was "acceptable." 

In addition, the judge was not persuaded that A.N. would be harmed if 

permitted to remain in Cherry Hill, and determined that plaintiff's concerns 

about the child being raised in a "Pakistani bubble" were not logical or 

reasonable. The judge rejected plaintiff's argument that A.N. should go to East 
9 A-0212-23

Windsor School District because she has playdates and friends in the area 

because "there [was] no evidence that [A.N.] does not have similar playdates, 

friends, and socialization in the Cherry Hill School District." 

 The judge then sua sponte decided the parenting time schedule set forth 

in the MSA had to be modified because A.N. was beginning school in the fall. 

The judge first noted: 

Of the N.J.S.A. 9:2-4 factors, the geographic distance 

between the parties' homes weighs most heavily in 

favor of the need to modify custody. It is not in the 

child's best interest to travel approximately [forty] 

miles each way, predominantly on highways, half of the 

month in order to reach school, whether school is in 

Cherry Hill or in East Windsor. 

Although the judge found that the increased distance between the parties' homes 

was due to defendant's move farther south from Maple Shade, the judge still 

ultimately determined that "a modification of the parenting time schedule [was] 

warranted and necessary given the distance between the parties' homes and the 

need for the child to attend school in one school district." Absent testimony 

from fact and/or expert witnesses, the judge determined that the best interests of 

the child would be best met with the following parenting time schedule: 

a. Plaintiff shall have parenting time the first three 

weekends in February, March, May, June, September, 

October, November, and December from Friday after 
10 A-0212-23

school to drop-off at school on Monday (72 

overnights). 

b. Plaintiff shall have parenting time July 1-31 each 

year (31 overnights). Defendant shall have parenting 

time from August 1-31 each year. Absent agreement of 

the parties or further order of the court, neither parent 

may take vacation time during the other parent's 

summer parenting time. Any summer vacations with the 

child must be taken during the parent's summer 

parenting time. 

c. Plaintiff shall have the following holidays annually 

as additional parenting time: President's Day weekend 

from Friday after school to Tuesday drop-off at school 

(4 O/N) (overnight), Memorial Day weekend from 

Friday after school to Tuesday drop-off at school (4 

O/N), and Thanksgiving Day weekend from 

Wednesday after school to Monday drop-off at school

(5 O/N). 

d. All holiday time and provisions not modified herein 

shall continue to alternate in accordance with the 

holidays language delineated in Article III, 13 of the 

[MSA]. 

e. Parenting time transportation shall continue as stated 

in the MSA. 

 On September 21, 2023, plaintiff filed a notice of appeal from the August 

24, 2023 order. On October 20, 2023, the judge issued an amplification to her 
11 A-0212-23

August 24, 2023 order.6 In her amplified written statement of reasons, the judge 

first acknowledged that the issue of this case centers around the initial school 

district placement of A.N., which in turn necessitates a modification of the 

parties' custody agreement. The judge then analyzed the fourteen factors set 

forth in N.J.S.A. 9:2-4, to "support a change in custody naming defendant as the 

[PPR] to allow [A.N.] to attend school in Cherry Hill." 

 Starting with factor one—the parent's ability to agree, communicate and 

cooperate in matters relating to the child—the judge found it was neutral and 

did not favor either party. The judge stated, "[t]he parties' difficult and 

incomplete communications in early 2023 regarding school selection, despite 

knowing that they needed to address and agree on this issue for the upcoming 

school year as contemplated by the [MSA], demonstrates an inability to 

communicate with each other effectively." 

Next, the judge found that factor two—the parents' willingness to accept 

custody and any history of unwillingness to allow parenting time not based on 

substantiated abuse—fell in neither party's favor noting that there were no 

allegations of unwillingness to allow parenting time by either party. 

6

 "Rule 2:5-1(b) . . . permits a judge, officer, or agency to file an amplification 

of a prior decision if it is appealed . . . ." In re Proposed Quest Acad. Charter 

Sch., 216 N.J. 370, 383 (2013). 
12 A-0212-23

 As for factor three—the interaction and relationship of the child with its 

parents and siblings—the judge found this factor was neutral. The judge noted 

that "both parties appear to care for the child and her best interests." 

The judge found that factor four—the history of domestic violence, if 

any—also fell in neither party's favor because there are no allegations of 

domestic violence. 

 Regarding factor five—the safety of the child and the safety of either 

parent from physical abuse by the other parent—the judge found there was 

"insufficient information to address this factor." 

The judge next found that factor six—the preference of the child when of 

sufficient age and capacity to reason so as to form an intelligent decision—was 

neutral and not applicable because A.N. was not of sufficient age. 

 As to factor seven—the needs of the child—the judge found this factor 

weighed in defendant's favor. The judge supported her conclusion by noting 

that "Cherry Hill offers better educational opportunities than East Windsor . . . 

[so] residing primarily with defendant in Cherry Hill is in the child's best 

interest." 

The judge determined that factor eight—the stability of the home 

environment offered—did not fall in favor of either party. The judge highlighted 
13 A-0212-23

there was "insufficient support for plaintiff's belief that his background provides 

more stability to the child than defendant, or that defendant's background 

provides instability." In addition, the judge noted that both parents receive 

support from family members, and both "appear to be able to provide a stable 

home environment for the child." 

 After analyzing factor nine—the quality and continuity of the child's 

education—the judge determined this factor fell in defendant's favor. In support 

of her decision, the judge referenced the information provided by both parties: 

Plaintiff provides at his Exhibit V a Niche rating for 

East Windsor schools which shows a summary A- as 

the Overall Niche Grade. However, it is unclear how

this was calculated as the East Windsor Schools also 

have the following Niche ratings, which average to a B 

or B+: 

B+ Academics 

B+ Teachers 

B Clubs & Activities 

B+ Sports 

C Resources & Facilities 

A Diversity 

A+ College Prep 

B- Administration 

B- Food 

Significant to the analysis is that both parties' exhibits 

show that Cherry Hill is superior to East Windsor 

statistically. The East Windsor school Niche ratings for 

math (43% proficiency) and reading (57% proficiency) 

are similar to the [USNWR] statistics cited by plaintiff 
14 A-0212-23

(Exhibit C) for math (50% proficiency) and reading 

(54% proficiency). Defendant shows at her Exhibit B

that the Cherry Hill school ratings are far higher for 

math (82% proficiency) and reading (87% proficiency) 

than those for East Windsor. She also notes that East 

Windsor is not among the ranked schools in USNWR, 

while Cherry Hill is ranked 47 in the state. The Niche 

rating for Best Schools in New Jersey places East 

Windsor at #99 of 243. 

The judge also found that factor ten—the fitness of the parents—fell in neither 

party's favor and pointed out that neither party alleged that the other parent was 

"unfit." 

 The judge found factor eleven—the geographical proximity of the parents' 

homes—fell in neither party's favor. The judge noted, "[t]he lack of proximity 

of the parties' homes was addressed in the underlying August 24, 2023 [o]rder, 

as well and is the primary reason for the need to modify custody." 

The judge determined that factor twelve—the extent and quality of the 

time spent with the child prior to or subsequent to the separation—fell in neither 

party's favor because "neither party provided substantial facts as to this." 

Regarding factor thirteen—the parents' employment responsibilities—the 

judge found this factor fell in neither party's favor. The judge emphasized that 

each party asserts they have flexible work schedules, but both fail to address 
15 A-0212-23

their specific employment opportunities and how it could impact their 

availability. 

Finally, the judge found factor fourteen—the age and number of the 

children—fell in neither party's favor. The judge stated, "[t]he child is now six 

years old and has no siblings. She is still entirely reliant on the parties for her 

care. This includes needing to be transported to and from school with the least 

amount of risk." 

 Overall, the judge found that the parts were "generally equal" in standing, 

but that factors seven and nine continue to support a change in custody. The 

judge stated: 

The quality of education that defendant can provide in 

Cherry Hill exceeds what plaintiff can provide in East 

Windsor. The major difference between the two parties 

is found in their Exhibits V (plaintiff) and C 

(defendant), which show that Cherry Hill as compared 

to East Windsor has superior student proficiency in

math and reading, as well as a general overall higher 

ranking for schools in New Jersey. This persuades the 

court that it is in the child's best interest to attend 

Cherry Hill schools. Custody must be modified so the 

child does not have to travel extensively from 

plaintiff[

'

]

s home to and from Cherry Hill for school or 

rise especially early at plaintiff['

]

s home in order to 

reach Cherry Hill on time for school. She also will have 

more time for friends and activities at school if she 

primarily resides close by at defendant['

]

s home in 

Cherry Hill. 
16 A-0212-23

This appeal followed. 

II. 

Our review of a Family Part order is limited. See Cesare v. Cesare, 154 

N.J. 394, 411 (1998). "Because of the family courts' special jurisdiction and 

expertise in family matters, appellate courts should accord deference to family 

court factfinding." Id. at 413. Therefore, findings made by the Family Part are 

"binding on appeal when supported by adequate, substantial, and credible 

evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Invs. Ins. Co., 65 

N.J. 474, 484 (1974)). "We will reverse only if we find the trial [court] clearly 

abused [its] discretion." Clark v. Clark, 429 N.J. Super. 61, 72 (App. Div. 2012) 

(quoting Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 354 (App. Div. 

2009)). Accordingly, we should not disturb the trial court's fact findings unless 

we are "convinced that they are so manifestly unsupported by or inconsistent 

with the competent, relevant, and reasonably credible evidence as to offend the 

interests of justice." Cesare, 154 N.J. at 412 (quoting Rova Farms, 65 N.J. at

484). 

We do not defer to a trial court on questions of law. N.J. Div. of Youth 

& Fam. Servs. v. V.T., 423 N.J. Super. 320, 330 (App. Div. 2011). We conduct 

a de novo review of a trial court's legal conclusions and interpretations of the 
17 A-0212-23

law. Ricci v. Ricci, 448 N.J. Super. 546, 565 (App. Div. 2017) (citing Reese v. 

Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)). "A trial court's interpretation 

of the law and the legal consequences that flow from established facts are not 

entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of 

Manalapan, 140 N.J. 366, 378 (1995). 

It is axiomatic that the best interests of the child is the fundamental legal 

principle guiding our review. D.A. v. R.C., 438 N.J. Super. 431, 450 (App. Div. 

2014) (citing Kinsella v. Kinsella, 150 N.J. 276, 317-18 (1997)). "A custody 

arrangement adopted by the trial court, whether based on the parties' agreement 

or imposed by the court, is subject to modification based on a showing of 

changed circumstances, with the court determining custody in accordance with 

the best interests standard of N.J.S.A. 9:2-4." Bisbing v. Bisbing, 230 N.J. 309, 

322 (2017). 

The party seeking to change a judgment or agreement involving a 

custodial arrangement bears the burden of demonstrating the status quo is no 

longer in a child's best interest. See Ibid. "Modification of an existing child 

custody order is a 'two-step process.'" Costa v. Costa, 440 N.J. Super. 1, 4 (App. 

Div. 2015) (quoting R.K. v. F.K., 437 N.J. Super. 58, 62 (App. Div. 2014)). 
18 A-0212-23

"First, a party must show 'a change of circumstances warranting [a] 

modification' of the custodial arrangements." Ibid. (quoting R.K., 437 N.J. 

Super. at 63). "If the party makes that showing, the party is 'entitled to a plenary 

hearing as to disputed material facts regarding the child's best interests, and 

whether those best interests are served by modification of the existing custody 

order.'" Ibid. (quoting R.K., 437 N.J. Super. at 62-63). "A thorough plenary 

hearing is necessary in contested custody matters where the parents make 

materially conflicting representations of fact." J.G. v. J.H., 457 N.J. Super. 365, 

372 (App. Div. 2019) (citing K.A.F. v. D.L.M., 437 N.J. Super. 123, 137-38 

(App. Div. 2014)). 

 However, "not every factual dispute that arises in the context of 

matrimonial proceedings triggers the need for a plenary hearing." Harrington v. 

Harrington, 281 N.J. Super. 39, 47 (App. Div. 1995) (citing Adler v. Adler, 229 

N.J. Super. 496, 500 (App. Div. 1988)). "[A] plenary hearing is only required 

if there is a genuine, material and legitimate factual dispute." Segal v. Lynch, 

211 N.J. 230, 264-65 (2012) (citations omitted). "Without such a standard, 

courts would be obligated to hold hearings on every modification application." 

Lepis v. Lepis, 83 N.J. 139, 159 (1980). 
19 A-0212-23

Although, "not every factual dispute that arises in the context of 

matrimonial proceedings triggers the need for a plenary hearing[,] . . . we have 

repeatedly emphasized that trial judges cannot resolve material factual disputes 

upon conflicting affidavits and certifications." Harrington, 281 N.J. Super. at 

47 (App. Div. 1995); see also Faucett v. Vasquez, 411 N.J. Super. 108, 119 

(App. Div. 2009) ("Absent exigent circumstances, changes in custody should 

not be ordered without a full plenary hearing."). A judge's decision not to 

conduct a plenary hearing is reviewed on an abuse of discretion standard. Hand 

v. Hand, 391 N.J. Super. 102, 111-12 (App. Div. 2007); see also Lepis, 83 N.J. 

at 159 (finding "courts should be free to exercise their discretion to prevent 

unnecessary duplication of proofs and arguments.").

We consider whether plaintiff is entitled to a plenary hearing on his crossmotion. Plaintiff seeks a plenary hearing to determine which school district 

A.N. should attend. Plaintiff contends the parties' conflicting certifications 

demonstrated there was a genuine factual dispute regarding A.N.'s welfare, and 

the judge abused her discretion by not conducting a plenary hearing. We agree. 

Based on the record, we are persuaded the judge abused her discretion in 

denying a plenary hearing on selection of A.N.'s school. Here, plaintiff and 

defendant provided very different and conflicting school rankings. For example, 
20 A-0212-23

plaintiff provided a 2023 Niche ranking for the entirety of the East Windsor 

School District, which explained that the overall ranking was A- and it received 

an A in diversity and an A+ in college prep. 

Defendant on the other hand provided a 2021 USNWR ranking for Joesph 

D. Sharp Elementary School, which explained the school was ranked #47 in the 

State and had a math proficiency rate of 82% and a reading proficiency rate of 

87%. Defendant also provided a 2021 USNWR ranking for Walter C. Black 

Elementary School, which explained the school was unranked and had a math 

proficiency rate of 50% and a reading proficiency rate of 54%. 

The school rankings—which are hearsay—neither come from the same 

website nor are from the same year. Moreover, the rankings do not survey the 

same subject matter; plaintiff's ranking is for the district as a whole and 

defendant's rankings focused specifically on the elementary schools. Thus, the 

judge evaluated different and conflicting rankings and then ultimately adopted

defendant's rankings over plaintiff's without the benefit of a plenary hearing and 

substantially changed the parties' 50/50 custody and parenting time plan set forth 

in their MSA.7

7

 The judge also could have appointed a guardian ad litem for the child. 

Pursuant to N.J.S.A. 9:2-4 and Rule 5:8B, the court may appoint a guardian ad 
21 A-0212-23

Where, as here, the parents share joint custody and are unable to agree on 

where to send their child to school, "[i]t is axiomatic that the court should seek 

to advance the best interests of the child." Levine v. Levine, 322 N.J. Super. 

558, 563 (App. Div. 1999) (quoting Asch v. Asch, 164 N.J. Super. 499, 505 

(App. Div. 1978)). "The 'best interests' of the child means, among other things: 

(1) the right of [the] children to be supported, nurtured, and educated in accord 

with the parents' collective income; and (2) requiring the parents to keep their 

promises and commitments consistent with their ability to do so." D.G. v. K.S., 

444 N.J. Super. 423, 439 (Ch. Div. 2015) (citing Hoefers v. Jones, 288 N.J. 

Super. 590, 604 (Ch. Div. 1994), aff'd., 288 N.J. Super. 478 (App. Div. 1996)). 

A determination of which school is in a child's best interests is "inherently 

subjective." Levine, 322 N.J. Super. at 567. Such a determination requires the 

court to not only consider a school's statistics and ranking, but also "peer 

relationships, the continuity of friends[,] and an emotional attachment to school 

litem in any case in which custody or parenting time or visitation is an issue. A 

guardian ad litem appointed pursuant to Rule 5:8B "acts as an independent fact 

finder, investigator and evaluator as to what furthers the best interests of the 

child." Pressler & Verniero, Current N.J. Court Rules, off. cmt. on R. 5:8A and 

5:8B; see also Milne v. Goldenberg, 428 N.J. Super. 184, 201 (App. Div. 2012) 

(noting that the guardian ad litem is to have "no perceived bias in favor of one 

parent's position because [his or her] role is to act on behalf of the court and 

present the best interests of the children"). 
22 A-0212-23

and community that will hopefully stimulate intelligence and growth to expand 

opportunity." Ibid. 

In our view, the judge erred by not conducting a plenary hearing on the 

issue of what school A.N. should attend and by selecting the Cherry Hill School 

District based on conflicting school rankings and designating defendant as PPR 

for school purposes. The judge also erred in changing the 50/50 custody and 

parenting time provision contained in the MSA. It appears the only order 

expressly addressing custody and parenting time is the MSA. Nonetheless, the 

judge did not consider whether defendant made an adequate showing the 

circumstances had substantially changed following the entry of the FDJD 

incorporating the MSA such that a change in the 50/50 custody and parenting 

time is appropriate. 

For these reasons, we reverse the August 24, 2023 order and remand for a 

plenary hearing. In remanding the matter to the judge, we do not express any 

view on the merits of the motion and cross-motion. Those determinations shall 

be made by the judge in the first instance based on the record presented as 

supplemented by any additional factual and expert testimony. The judge shall 

conduct such proceedings on remand as she deems appropriate to address and 

decide the motion and cross-motion anew. We also recognize that the evidence 
23 A-0212-23

at the plenary hearing will include evidence concerning how A.N. is doing at 

her current school and whether a change will be in her best interests. 

Plaintiff's remaining arguments are without sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(1)(E). 

Reversed and remanded. We do not retain jurisdiction.