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 (Geor ge G. Gussis, on the briefs). Law Offices of Andrew N. Yurick, attorney s 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 NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0212

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In this post-judgment matrimonial matter, plaintif f Amim Butt appeals from an August 24, 2023 Family Part order designati ng his ex-wife, defendant Mariyam Khaleeque, as the parent of primary residen ce (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 Distric t. 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 di scretion 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 find ing a change of circumstances was created by allowing defendant to enroll the child in the

2 The Child Support Guidelines use the term ["PPR"] t o denote "[t]he parent with whom the child spends most of his or her overn ight 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 (2 025 ). 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 confide ntiality of the child.3 A- 0212

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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 e nrolled in the Cherry Hill School District as it was not in the best inte rest of the child; (5) violated N.J.S.A. 9:2-4 when a change of circumstances was c reated by allowing defendant to enroll the child in the Cherry Hill Sc hool 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 al lowing defendant to enroll the child in the Cherry Hill School District as opp osed to the East Windsor School District; and (8) abused her discretion by i gnoring defendant's living arrangement. Based on our review of the record, plaintiff's arg uments, and the applicable legal principles, we reverse the order u nder review and remand to the Family Part for a plenary hearing on all issues.
I. In 2015, plaintiff returned to Pakistan and entere d into an arranged marriage with defendant. The following year

— 2016

— the parties were married in Pakistan. In October 2017, after returning to t he United States, their daughter4 A- 0212

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was born. The following month, plaintiff filed a d ivorce complaint against defendant on the ground of irreconcilable differenc es. A final dual judgment of divorce (FDJD) incorporat ed the parties' MSA, which was entered on July 25, 2018. The MSA provid ed that the parties would "share joint legal custody of the minor child of th e 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 eac h week and PHASE 4 [C] hild [S]upport [G] uide lines shall apply. Unless the parties agree otherwise in a wri ting 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] sh all 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 discus s 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 issu e or either party may bring

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

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The parties disagree about whether there were prio r communications discussing which school A.N. would attend. Neverth eless, 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 Hi ll School District. In her email defendant stated:

I am reaching out to you with the proposal to recon sider 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 Cherr y 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 Cherr y [H]ill [S]chool [D]istrict with our mutual agreement. 2. Considering [A.N.'s] best interest, I propose havin g [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

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Plaintiff responded by recommending that A.N. attend the Ea st 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 enforc e the parties' MSA, as well as permission to enroll the child in t he Cherry Hill School District. In her moving certification, defendant stated that she lived in Cherry Hill and "specifically picked this location based on the hig h rating the Cherry Hill School District has in the State of New Jersey." Defendan t also certified that she communicated with plaintiff that Cherry Hill was he r preferred school district, and "pointed out to him that the East Windsor Schoo l 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% an d the reading proficiency is ranked at 87%. The report indicates that both math and reading performance fo r the school is "[w]ell [a]bove [e] xpectations." Defendant noted the comparison to Walter C. Black E lementary School, which is unranked, and shows a math proficiency rate of a bout 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 and7 A- 0212

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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 cros s-motion opposing defendant's motion and requesting that he be design ated the PPR for school purposes. In his cross-moving certification, plain tiff stated he only discovered that defendant enrolled their daughter in the Cherr y Hill School District on January 25, 2023, after a conversation with A.N. le d him to contact the school. He certified that defendant "never ha[d] any discus sion 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 rati ng on Niche 4 is "A-" and it received an "A" in diversity and an " A+ " in college prep. 5
Plaintiff also certified that he contacted the Eas t 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 i n the East Windsor School District

4 Niche is a website that provides rankings and reviews of kindergarten through twelfth grade schools, colleges, cities, neighborho ods, 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 Walt er C. Black Elementary School ha d a reading proficiency rate of 57% and a math prof iciency rate of 43%.8 A- 0212

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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-Pakistan is outside of school." On July 7, 2023, the judge briefly heard oral argu ment 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. sh all be enrolled in the Cherry Hill School District, with defendant being named the PPR, and t hat 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 dist rict. 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 sc hool 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 argumen t that A.N. should go to East9 A- 0212

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Windsor School District because she has playdates a nd friends in the area because "there [was] no evidence that [A.N.] does n ot have similar playdates, friends, and socialization in the Cherry Hill Schoo l District." The judge then sua sponte decided the parenting time schedul e set forth in the MSA had to be modified because A.N. was begi nning 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 [fort y] miles each way, predominantly on highways, half of the month in order to reach school, whether school is i n 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 Mapl e Shade, the judge still ultimately determined that "a modification of the p arenting 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 d istrict." Absent testimony from fact and/or expert witnesses, the judge determi ned that the best interests of the child would be best met with the following pare nting time schedule:

a. Plaintiff shall have parenting time the first th ree weekends in February, March, May, June, September, October, November, and December from Friday after10 A- 0212

- 23 school to drop-off at school on Monday (72 overnights). b. Plaintiff shall have parenting time July 1-31 ea ch year (31 overnights). Defendant shall have parentin g time from August 1-31 each year. Absent agreement o f 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 th e child must be taken during the parent's summer parenting time. c. Plaintiff shall have the following holidays annu ally as additional parenting time: President's Day week end from Friday after school to Tuesday drop-off at sch ool (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 her ein 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 s tated 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 iss ued an ampli fi cation to her11 A- 0212

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August 24, 2023 order. 6 In her amplified written statement of reasons, th e judge first acknowledged that the issue of this case cent ers around the initial school district placement of A.N., which in turn necessita tes a modification of the parties' custody agreement. The judge then analyze d the fourteen factors set forth in N.J.S.A. 9:2-4, to "support a change in cu stody naming defendant as the [PPR] to allow [A.N.] to attend school in Cherry Hi ll." 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 s chool selection, despite knowing that they needed to address and agree on this issue for the upcoming school year as contemplated by the [MSA], demonstra tes an inability to communicate with each other effectively." Next, the j udge found that factor two

— the parents' willingness to accept custody and any history of unwillingness to allow p arenting time not based on substantiated abuse

— fell in neither party's favor noting that there wer e no allegations of unwillingness to allow parenting tim e 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

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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 ar e 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 opportu nities than East Windsor . . . [so] residing primarily with defendant in Cherry Hi ll 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 h ighlighted13 A- 0212

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there was "insufficient support for plaintiff's bel ief that his background provides more stability to the child than defendant, or that defendant's background provides instability." In addition, the judge note d 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 informati on 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 als o 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' e xhibits show that Cherry Hill is superior to East Windsor statistically. The East Windsor school Niche rating s for math (43% proficiency) and reading (57% proficiency ) are similar to the [USNWR] statistics cited by plai ntiff14 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 Ea st Windsor is not among the ranked schools in USNWR, while Cherry Hill is ranked 47 in the state. The Ni che 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 al leged 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 underlyi ng August 24, 2023 [o]rder, as well and is the primary reason for the need to m odify 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 subst antial 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 schedule s, but both fail to address15 A- 0212

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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 entirel y relian t on the parties for her care. This includes needing to be transported to an d from school with the least amount of risk." Overall, the judge found that the parts were "generally equal" in stan ding, 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 E ast Windsor. The major difference between the two parties is found in their Exhibits V (plaintiff) and C (defendant), which show that Cherry Hill as compare d to East Windsor has superior student proficiency in math and reading, as well as a general overall high er ranking for schools in New Jersey. This persuades t he court that it is in the child's best interest to at tend Cherry Hill schools. Custody must be modified so th e 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 s he primarily resides close by at defendant [ ' ] s home in Cherry Hill.16 A- 0212

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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 court s' special jurisdiction and expertise in family matters, appellate courts shoul d accord deference to family court factfinding. " Id. at 413. Therefore, findings made by the Famil y Part are

" binding on appeal when supported by adequate, substantial, and credible evidence." I d. at 4 11

- 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. S uper. 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 unsup ported by or inconsistent with the competent, relevant, and reasonably credib le 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 la w. N.J. Div. of Youth & Fam. Servs. v. V.T., 423 N.J. Super. 320, 330 (App. Div. 201 1). We conduct a de novo review of a trial court's legal conclusio ns and interpretations of the17 A- 0212

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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 fro m 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 chil d 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, 3 17-18 (1997)). "A custody arrangement adopted by the trial court, whether bas ed on the parties' agreement or imposed by the court, is subject to modification based on a showing of changed circumstances, with the court determining c ustody 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 demonstra ting the status quo is no longer in a child's best interest. See Ibid. "Mod ification 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. 5 8, 62 (App. Div. 2014)).18 A- 0212

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"First, a party must show 'a change of circumstance s warranting [a] modification' of the custodial arrangements." Ibid . (quoting R.K., 437 N.J. Super. at 63). "If the party makes that showing, t he 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 modifica tion 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 w here 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 ple nary 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 fact ual 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

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Although , "not every factual dispute that arises in the con text of matrimonial proceedings triggers the need for a ple nary hearing[,] . . . we have repeatedly emphasized that trial judges cannot reso lve material factual disputes upon conflicting affidavits and certifications." H arrington, 281 N.J. Super. at 47 (App. Div. 1995) ; see also Faucett v. Vasquez, 411 N.J. Super. 108, 1 19 (App. Div. 2009) ("Absent exigent circumstances, ch anges 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 discret ion 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 plen ary hearing on his crossmotion. Plaintiff seeks a plenary hearing to deter mine which school district A.N. should attend. Plaintiff contends the parties ' conflicting certifications demonstrated there was a genuine factual dispute re garding A.N.'s welfare, and the judge abused her discretion by not conducting a plenar y hearing. We agree. Based on the record, we are persuaded the judge abu sed her discretion in denying a plenary hearing on selection of A.N.'s sc hool. Here, plaintiff and defendant provided very different and conflicting s chool rankings. For example,20 A- 0212

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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 sch ool 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 u nranked and had a math proficiency rate of 50% and a reading proficiency r ate 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 el ementary schools. Th us, the judge evaluated different and conflicting rankings and the n ultimate ly adopt ed defendant's rankings over plaintiff's without the b enefit 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 R ule 5:8B, the court may appoint a guardian ad21 A- 0212

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Where, as here, the parents share joint custody and are unable to agree on where to send their child to school, "[i]t is axiom atic that the court should seek to advance the best interests of the child." Levin e v. Levine, 322 N.J. Super. 558, 563 (App. Div. 1999) (quoting Asch v. Asch, 16 4 N.J. Super. 499, 505 (App. Div. 1978)). "The 'best interests' of the ch ild means, among other things: (1) the right of [the] children to be supported, nu rtured, and educated in accord with the parents' collective income; and (2) requir ing the parents to keep their promises and commitments consistent with their ability to d o so." D.G. v. K.S. , 444 N.J. Super. 423, 439 (Ch. Div. 2015) (citing Ho efers v. Jones, 288 N.J. Super. 590, 604 (Ch. Div. 1994), aff'd., 288 N.J. S uper. 478 (App. Div. 1996)). A determination of which school is in a child's bes t 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 an d ranking, but also "peer relationships, the continuity of friends[,] and an emot ional attachment to school

litem in any case in which custody or parenting tim e or visitation is an issue. A guardian ad litem appointed pursuant to R ule 5:8B "acts as an independent fact finder, investigator and evaluator as to what furth ers the best interests of the child." Pressler & Verniero , Current N.J. Court Rules, off. cmt. on R. 5:8A and 5:8B ; s ee also Milne v. Goldenberg, 428 N.J. Super. 184, 201 (App. Div. 2012) (noting that the guardian ad litem is to have "no p erceived bias in favor of one parent's position because [his or her] role is to a ct on behalf of the court and present the best interests of the children").22 A- 0212

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and community that will hopefully stimulate intelli gence and growth to expand opportunity." Ibid. In our view, the judge erred by not conducting a pl enary hearing on the issue of what school A.N. should attend and by select ing the Cherry Hill School District based on conflicting school rankings and d esignating defendant as PPR for school purposes. The judge also erred in chang ing 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 ad equate showing the circumstances had substantially changed following t he 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 ju dge, 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
sup plemented by any additional factual and expert test imony. 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 evidence23 A- 0212

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at the plenary hearing will include evidence concer ning 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 suffici ent merit to warrant discussion in a written opinion. R. 2:11 -3(e)(1)(E). Reversed and remanded. We do not retain jurisdicti on.