SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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L

. P

. , Plaintiff

- Respondent,

v. J

. H

. , Defendant

- Appellant.

_______________________

Submitted April 20, 2020

– Decided June 16, 2020 Before Judges Rothstadt and Moynihan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM

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- 19. Gomperts Penza McDermott & Von Ellen, LLC, attorneys for appellant (Joseph M. Freda, III, of counsel and on the brief). Respondent has not filed a brief.
PER CURIAM In this post judgment custody dispute, defend ant J

. H

. appeals from the Family Part's November 30, 2018 order denying his motion to change the NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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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residential custody of his s on from his former wife, plaintiff L

. P

. , to defendant. 1
Defendant ' s motion also sou ght the appointment of a custody exp ert , the preparation of a custody evaluation , and an in

- camera interview of the child. Defendant further sought the suspension of "[ p ] laintiff ' s parenting time with [their son] pending a full custody evaluation /risk assessment and well check , and other related relief." The Family Part judge denied the motion after concluding that defendant failed to make "a prima facie showing that the current custodial arrangement [was] not in the best interest of the child or children in issue

. " On appeal,
defendant contends that the judge "committed harmful error by denying defendant's request for a court

- appointed custody evaluation" as had been recommended by the parties' parent coordinator and by not conducting the in

camera interview of the child. We affirm sub stantially for the reasons expressed by the motion judge

. The facts taken from the motion record are summarized as follows. The parties were married in December 2000. They were divorced on December 3, 2009. They have two children, a daughter born in 200 2 and a son in 2007. Prior

1 We refer to the parties by their initials to protect the privacy interests of their children. R. 1:38

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to their divorce, on Ju ly 30, 2009 , the parties entered into a consent order that resolved the custody and parenting time issues arising from the divorce. The parties' property settlement agreement , that was made part of their judgment of divorce , incorporated the July 3 0, 2009 consent order. The consent order awarded joint legal custod y to the parties with plaintiff being designated as the parent of primary residence. It also established a parenting time schedule for defenda nt. In the order, the parties agreed that if they had any disagreements regarding custody or parenting time, they would consult with Dr. Sharon Ryan Montgomery as a parent coordinator before seeking relief from the court. In or about 2017 , problems between the parties developed. D efendant filed a motion seeking custody of the parties' son after the boy expressed a desire to live with defendant , when plaintiff was relocat ing to a new town. Prior to oral argument, i n an attempt to address those probl ems, and as contemplated in the 2009 custody and parenting time order, the parties' engaged Dr. Montgomery to address parenting issues despite major hostility between the parties.
In Dr. Montgomery's notes from an October 30, 2017 meeting with the parti es, she observed that the parties' son was reported by defendant to have expressed a dislike of plaintiff 's fiancé

. According to plaintiff , the relationship4 A

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was good. The d octor recognized that the daughter had no contact with defendant, but the parties "could not agree on the contributing factors or how it came about." She also noted that the daughter was being treated by Dr. Jessica Auth , her individual therapist at Short Hills Associates in Clinical Psychology , who address ed the strained relationship the daughter had with defendant. Prior to oral argument, plaintiff relocated with the children and her fiancé to the new town. After oral argument on November 28, 2017 , t he motion judge denied the relief in a November 29, 2017 order that also directed the parties to cooperate with the recommendations of the professionals providing therapy. Moreover, it stated that the judge would appoint medical professionals to provide reunification therapy for defendant and the parties' daughter an d family therapy for the parties and their children. The parties agreed that Dr. Montgomery would recommend therapists. In December 2017 , plaintiff advised Dr. Montgomery that she would no longer participate with defendant and the doctor once her retainer was depleted, as she did not have the funds to pay for further services. On February 13, 2018, defendant wrote to plaintiff asking that they review the original July 2009 custody and parenting time established in the consent order. Plaintiff said she5 A

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di d not want to have contact with defendant and that he should "stop unnecessarily contacting" her. Despite plaintiff's initial refusal to speak to him or to continue with Dr. Montgomery, the parties participated in a conference call with the doctor in an attempt to address some issues. According to defendant, plaintiff was not cooperative and conducted the telephone conference in the presence of their son over a telephone speaker. In May 2018, the son stated he wanted to live with defendant as he had a terrible relationship with plaintiff's fiancé. According to defendant , this "triggered the false allegations [p]laintiff's fiancé[] made about" defendant and their daughter. In response and after the New Jersey Division of Child Permanency and
Placement (Division) became involved with the family, and criminal charges were asserted against each other by defendant and plaintiff's fiancé, plaintiff said she did not want to have contact with defendant and that he should only contact her if there was an emerg ency regarding their son. As a result, Dr. Montgomery wrote to the parties stating that she could no longer proceed in her6 A

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role as parent coordinator and recommended that the children be evaluated by a court appointed or an agreed upon evaluator to assess each parents ' concerns. 2
In his ensuing July 2018 motion, defendant contended in a supporting certification that plaintiff refused to comply with the November 2017 order. He noted that despite that order , plaintiff terminated the daughter ' s participation in the court ordered therapy , which was contrary to the recommendations of the mental health providers involved , Dr. Auth and another doctor who provide d psychiatric treatment and also worked at Short Hills Associates in Clinical Psychology

. Defendant also described how matters became worse between him
and plaintiff after her fiancé made accusations to the Division that defendant "sexually abused [their] daughter and that [he] attempted to ' run over ' [the] fiancé with [his] car." Defendant v ehemently denied these allegation s . In a June 26, 2018 letter to defendant, the Division advised that it completed an assessment based upon a report made to the a gency on May 21,
2018. T he Division also stated it would not be providing services to the f amily , but it identified certain evaluations that needed to be completed for the children. Specifically , it stated that an evaluation of the daughter's "behavioral health

2 After the motion was filed, Dr. Montgomery indicated that she would be willing to continue in her role as a parent coordinator.7 A

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needs" should be performed, a missed mental health provider appointment should be re scheduled, and a well check for both children was needed

. According to defendant, he had conversations with representatives of the Division who stated it was "clear that [the Division] had some significant concerns about [ p ] laintiff's household , and especially with [ p ] laintiff's fiancé" that related to his "leering" at their daughter. Moreover, referring to the Division 's June 26, 2018 letter , he noted that it was concerned about services not being provided to the children. Defendant also descr ibed an incident on June 29, 2018 , two days after he filed his criminal complaint against plaintiff's fiancé, during which a tire on his vehicle was slashed while he was at one of his son's baseball games. He explained that people " witnessed [ p ] laintiff a nd her fiancé []

. . . near [ his ] car. " According to defendant, "[ t ] his [ was ] not a coincidence. " Defendant contended that plaintiff did " not view [ him ] as a co - parent , " and he described an incident in which he was notified by the school that his son

was having certain physical pains and needed to be seen by a doctor. Although defendant left work to immediately go to the school, plaintiff had taken the son to the hospital, but she refused to communicate with defendant as to the child's status. He also de scribe d other incidents that were communicated to him by his8 A

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son where the plaintiff's fiancé and his mother's conduct apparently di sturbed the child. Defendant attributed these various incidents to plaintiff being
embolden ed by the court's November 2017 order denying his application for relief. Plaintiff filed a certification in opposition to defendant's motion, denying defendant's allegations. It was plaintiff's contention throughout her opposition that defendant was trying to control their son and alienate him from plaintiff and their daughter. Plaintiff's certification reviewed the entire history of problems that the parties experienced with parenting time and the animosity that existed between the two of them , m uch of which occurred prior to the court's November 2017 order. She also requested that child support be paid through probation, and she sought the equitable distribution of defendant's pension. In her certification, plaintiff also confirmed that both children were enrolled in their new s chools , experienced success in their studies , and were otherwise thriving in their new environment. She detailed the son's involvement
in school , extra

- curricular activities , and sports

. Plaintiff also explained that defendant had called the Division on three different occasions , subjecting the children to unnecessary investigations. Plaintiff also made veiled accusations against defendant , stating that he was9 A

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avoiding having the judge interview their daughter, who was then sixteen years old, " [ b ] ecause if the [ c ] ourt hear [d] what [the daughter] ha [d] to say,

. . . defendant [ would ] be recognized for what he ha [d] done to her" and that he "alone is responsible for the demise of his relationship with his daughter." According to plaintiff, defendant " aband oned [their] daughter many years ago." Sh e also explained that contrary to defendant's contentions , their daughter was and has always been involved with " a c hild a dvocacy c enter , " which "has performed a risk assessment ," and there was no need for a full custody evaluation which the court had rejected in the November 2017 order as well. Plaintiff also explained in detail problems with defendant's participation
in reunification therapy and with effectuating parenting time. Plaintiff stated that defendant used the parent coordinator "to try and control [her] parenting time with both of [their] children and [he was] very intent on splitting up [the children] , even carelessly." Refe r ring to the call to the Division asserti ng allegations against defendant, plaintiff stated that they were referred to the c hildren's a dvocacy

c enter after a "disturbing call was made to [the Division] by a third party regarding

. . . [ d ] efendant's behavior. [Plaintiff d id] not wish to share thi s10 A

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information , as [she] truly fear [ed] the repercussions that [would] happen if

. . . [ d ] efendant

. . . [saw] the phone call and what initiated same

. . . . " Defendant then filed a reply certification reasserting his original contentions and challenging the statements made by plaintiff. H e also addressed issues mentioned by plaintiff , such as child support and the distribution of his pension

. After considering the parties written submissions , the Family Part judge entertained oral argument o n November 30, 2018 , before placing his decision on the record. A t the outset , he stated that " the legal standard for custody determinations is whether there [ was ] a prima facie showing that the current custodial arrangement [was] not in the best interest [s] of the child or children i n issue, and [that he had] concluded after careful ly reading all the papers

. . . that

. . . defendant " did not make "out a prima facie showing." The judge found that despite the parties ' animosity, the current arrangement s eemed " to be going well." He observed that there was no evidence that their son had any trouble in school , that he had difficulties making friends , or engaging in activities as a result of the plaintiff ' s move to her new home since the time he addressed the issue of relocation in the November 2017 order. The judge acknowledge d that defendant wanted to spend more time with his son but11 A

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"that [ was ] not a basis for concluding that [the son's] best interest s [were] not being served by the current custodial ar rangement." Addressing Dr. Montgomery's suggestion for an evaluation , the judge stated , he "just [did not] think subjecting either child to further evaluations and poking and prodding by experts [was] warranted at [the] time, absent that sort of prima f acie showing." He noted that the mere fact that the son indicate d to one parent that he wanted to live with defendant was not sufficient evidence. He concluded that " [ t ] here [was] really just nothing in this record indicating th at [ the son was ] at risk, that he ' s having troubles of any kind, it ' s just not there."
For that reason, the judge found there was no purpose in "ramp[ing] up" the

matter. Addressing defendant's relationship with his daughter, the judge observed that if defendant pursued some t ype of reunification therapy with his daughter in his motion , the judge would have had "no problem" with that request had it been made. Turning to the Division's recommendation that he review its
records , the judge stated that he did not perceive a ny need to see those documents. Accordin g to the judge , " [ i ] f there w ere things happening since [plaintiff's relocation]

. . . that cause [ d him] concern, . . . then [he] would have [had] a basis to look at" those records. Moreover, in light of the fact tha t, as12 A

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defendant's counsel confirmed , the Division did not have "any concerns for the safety of either child" under the present custodial arrangement , there was no need to take any action

. The judge concluded that there was " not enough showing for [him] to

warrant " reviewing the statutory factors in making a custody determination as argued by defendant. Further , there was no need to interview the parties' son. In closing, the judge noted that while there was a high degree of conflict between the parties t hat was separate and apart from the children thriving under the current custodial arrangement, albeit the ir being subjected to the negative impact of their parents ' issues. This appeal followed.
O ur review of a Family Part judge ' s determination in custody and parenting time matters is limited. "Family Part judges are frequently called upon to make difficult and sensitive decision s regarding the safety and well

- being of children." Hand v. Hand , 391 N.J . Super 102, 111 (App. Div. 2007). " [ B ] ecause of the f amily court s ' special jurisdiction and expertise in family matter s , [we] should accord deference to f amily court factfinding." N.J. Div. of Youth
& Family Servs. v. M.C. III , 201 N .J. 328, 343 (2010) (quoting Cesare v. Cesare , 154 N.J. 394, 413 (1998)). Our narrow review is based upon the fact "we have

' invest[ed] the f amily court with broad discretion because of its specialized13 A

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knowledge and experience in matters involving parental relationships and the best interest s of children. ' " N.J. Div. of Child Prot

. & Permanency v. A.B. , 231 N.J. 354, 365 (2017) (alteration in original) (quoting N.J. Div. of Youth and Family Servs. v. F.M. , 211 N.J. 420, 427 (2012) )

. "[W]e defer to [F ] amily [ P ] art judge s 'unless they are so wide o f the mark that our intervention is required to avert an injustice. ' " Ibid. (quoting F.M. , 211 N.J. at 427). However, "[w]e owe no special deference to the

. . . judge's legal determination s ." Slawinski v. Nicholas , 448 N.J. Super. 25, 32 (App. Div.
2016 ). "Notwithstanding our general deference to Family Part decision s , we are compelled to reverse when the [judge] does not apply the governing legal standards." Ibid. (citation omitted). "In custody cases, it is well settled that the court ' s primary co nsideration
is the best interest s of the children." Hand , 391 N.J. Super. at 105 (citing Kinsella v. Kinsella , 150 N.J. 276, 317 (1997)). In making the determination, a judge "must focus on the 'safety, happiness, physical, mental and moral welfare'
of t he children

. " I bid. ( quoting Fantony v. Fantony , 21 N.J. 525, 536 (1956) )

. "In issues of custody and visitation , '[t]he question is always what is in the best interest s of the children, no matter what the parties have agreed to.'" Ibid.14 A

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(alter ation in original) (quoting P.T. v. M.S. , 325 N.J. Super. 193, 215 (App. Div. 1999)). "A party seeking to modify custody must demonstrate changed circumstances that a ffect the welfare of the children. " Ibid. (citing Borys v. Borys , 76 N.J. 103, 115

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. Custody orders are subject to revision based on the changed circumstances standard. E aton v. Grau , 368 N.J. Super. 215, 222 (App. Div. 2004). "Modification of an existing child custody order is a 'two

- step process.'"
Costa v. Costa , 440 N.J. Su per. 1, 4 (App. Div. 2015) (quoting R.K. v. F.K. , 437 N.J. Super. 58, 62 (App. Div. 2014) )

. "[A] motion for a change in custody

. . . will be governed initial ly by a changed circumstances inquiry and ultimately by a simpl e best interest s analysis , " R.K. , 437 N.J. at 62 (second alteration in original) (quoting B aures v. Lewis , 167 N.J. 91, 116 (2001) , overruled on other grounds , Bisbing v. Bisbing , 230 N.J. 309 (2017) ) , using "the same standard that applie[d] at the time of [an] original judgment of divor ce. " Ibid. (second alteration in original) (quoting Gonzalez

- Posse v. Ricciardulli , 410 N.J. Super 340, 350 (App. Div. 2009) )

. "Firs t , a party must show ' a change of circumstances warranting
modification ' of the custodial arrangements. " Costa , 440 N.J. Super. at 415 A

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(quoting R.K. , 437 N.J. Super. at 63). Only i f the party makes that showing is th at party then "entitled to a plenary hearing as to disputed material facts regarding the child ' s best interest s , and whether those best interests are ser ved by modification of the existing custody order." Ibid. (quoting R.K. , 437 N.J. Super. at 62

- 63). A Family Part judge's determination regarding a change of
circumstances is subject to our review for an abuse of discretion. Ibid. Applying these guidin g principles, we conclude t hat the Family Part judge here properly exercised his discretion when he found that defendant failed to establish a change of circumstances. There was no evidence presented that the parties' son 's best interest s were not being served by the current custodial arrangement , although the record was replete with proof that the parties continue to maintain a heightened state of animosity towards each other. As to the son, however, he was thriving in school and there was no evidence that he suffered either psychological ly or physical ly or that he was not enjoying life to its fullest. Defendant's reliance upon suggesti ons made by the parenting coordinator for an evaluation or by the Division suggesting that its records be r eviewed were insufficient to establish a change of circumstances under the appropriate standard

. The evidence here established that the parties' daughter, and not the16 A

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son, suffers from significant issues that were not addressed by defendant in his motion

. Without meeting th e required threshold, the judge properly refused to order a custody investigation and hearing on the issue



### . Affirm ed

.