SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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O.M. , Plaintiff

- Respondent,

v.
M.Y.W. , Defendant

- Appellant.

Argued July 9, 2019

– Decided July 31, 2019 Before Judge s 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.
P ER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

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Defendant M

. W

. 1 appeals from an August 8, 2018 order establishing custody and parenting time for the pa r ties' then six

- year
- old child. Because the order was entered without regard to the parties' agreement to conduct a parenting
evaluation of t he 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 chi ld 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 op posed the application, seeking to continue the s tatus 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.3 A

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was designat ed as the parent of primary residen ce, the parties shared join t legal

custo d y, 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 exp ert 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 th e outstanding issues regarding custody and parenting time." On June 14, 2 018, the parties advised the court that their
settlement discussions and court mediation had been unsuccessful. How e ver , they had agreed on the joint custody expert and were arrangi ng 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
det ermining 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."4 A

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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 t he 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 discipl ine. 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, i nquiring whether he liked school
and summer cam p
. 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 b e lief that ther e was5 A

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nothing wrong w ith limited corporal punishment because she was exp o sed to the

same by her own parents. In addressing defendant's concerns about the child's behavioral issues an d 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 di scussion 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 p lenary hearing
in a contested custody ma t ter 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 is sues 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 or6 A

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. . 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 re ac hed 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 certificati o ns regardin g the c hild's behavior, academic issues,
medica l diagnoses, and met hods of discipline. They agreed both on the necessity of an expert custody evaluation and on a joint expert.
The family j udge 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.
T he judge entertained counsels' oral argument, but then questioned plaintiff
wit hout cross

- examination

. She did not ask defe n d a nt 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 fa c tors 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. F usco , 186 N.J. Super. 321, 327 (Ap p. Div. 1982) (holding a parenting time decision " made without an evidential basis, without examination and

cross
- exam i natio n o f 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

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. Reversed, vacated , and remanded for proceedings in accordance with this opinion. We do not retain jurisdiction.