SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1967-18T4

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-14-0136-19.

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, defendant 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NOT FOR PUBLICATION WITHOUT THE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." 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.
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residential custody of his son from his former wife, plaintiff L.P., to defendant.1 

Defendant's motion also sought the appointment of a custody expert, 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 incamera interview of the child. We affirm substantially 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 2002 and a son in 2007. Prior 

 

1

 We refer to the parties by their initials to protect the privacy interests of their 

children. R. 1:38-3(d). 
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to their divorce, on July 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 30, 2009 consent order. 

The consent order awarded joint legal custody to the parties with plaintiff 

being designated as the parent of primary residence. It also established a 

parenting time schedule for defendant. 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. Defendant 

filed a motion seeking custody of the parties' son after the boy expressed a desire 

to live with defendant, when plaintiff was relocating to a new town. Prior to 

oral argument, in an attempt to address those problems, 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 

parties, she observed that the parties' son was reported by defendant to have 

expressed a dislike of plaintiff's fiancé. According to plaintiff, the relationship 
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was good. The doctor 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 addressed 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, the 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 and 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 she 
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did 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 emergency regarding their son. As a result, Dr. 

Montgomery wrote to the parties stating that she could no longer proceed in her 
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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 provided

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 vehemently denied these allegations.

In a June 26, 2018 letter to defendant, the Division advised that it 

completed an assessment based upon a report made to the agency on May 21, 

2018. The Division also stated it would not be providing services to the family,

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. 
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needs" should be performed, a missed mental health provider appointment 

should be rescheduled, 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 described 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 and 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 described other incidents that were communicated to him by his 
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son where the plaintiff's fiancé and his mother's conduct apparently disturbed

the child. Defendant attributed these various incidents to plaintiff being 

emboldened 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, much 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 schools, 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 was 
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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 "abandoned [their] daughter many years ago." 

She also explained that contrary to defendant's contentions, their daughter was 

and has always been involved with "a child advocacy center," 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." 

Referring to the call to the Division asserting allegations against 

defendant, plaintiff stated that they were referred to the children's advocacy 

center after a "disturbing call was made to [the Division] by a third party 

regarding . . . [d]efendant's behavior. [Plaintiff did] not wish to share this 
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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. He 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 on November 30, 2018, before placing his decision 

on the record. At 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 in 

issue, and [that he had] concluded after carefully 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 seemed "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 acknowledged that defendant wanted to spend more time with his son but 
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"that [was] not a basis for concluding that [the son's] best interests [were] not 

being served by the current custodial arrangement." 

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 facie showing." He noted that the mere fact that the son indicated 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 that

[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 type 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 any need to see those

documents. According to the judge, "[i]f there were 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 that, as 
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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 that was separate and apart from the children thriving under the 

current custodial arrangement, albeit their being subjected to the negative impact 

of their parents' issues. This appeal followed.

Our 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 decisions regarding the safety and well-being of 

children." Hand v. Hand, 391 N.J. Super 102, 111 (App. Div. 2007). "[B]ecause 

of the family courts' special jurisdiction and expertise in family matters,

[we] should accord deference to family 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 family court with broad discretion because of its specialized 
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knowledge and experience in matters involving parental relationships and the 

best interests 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 judges 'unless they are so wide of 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 

determinations." Slawinski v. Nicholas, 448 N.J. Super. 25, 32 (App. Div. 

2016). "Notwithstanding our general deference to Family Part decisions, 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 consideration 

is the best interests 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 the children." Ibid. (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 

interests of the children, no matter what the parties have agreed to.'" Ibid.
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(alteration 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 affect the welfare of the children." Ibid. (citing Borys v. 

Borys, 76 N.J. 103, 115-16 (1978)). Custody orders are subject to revision based 

on the changed circumstances standard. Eaton 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. Super. 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 initially by a changed circumstances inquiry and ultimately by 

a simple best interests analysis," R.K., 437 N.J. at 62 (second alteration in 

original) (quoting Baures 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 divorce." Ibid. (second 

alteration in original) (quoting Gonzalez-Posse v. Ricciardulli, 410 N.J. Super 

340, 350 (App. Div. 2009)).

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

modification' of the custodial arrangements." Costa, 440 N.J. Super. at 4 
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(quoting R.K., 437 N.J. Super. at 63). Only if the party makes that showing is 

that party then "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 Family Part judge's determination regarding a change of 

circumstances is subject to our review for an abuse of discretion. Ibid.

Applying these guiding principles, we conclude that 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 interests 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 psychologically or physically or that he was not enjoying life to its fullest. 

Defendant's reliance upon suggestions made by the parenting coordinator 

for an evaluation or by the Division suggesting that its records be reviewed were 

insufficient to establish a change of circumstances under the appropriate 

standard. The evidence here established that the parties' daughter, and not the 
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son, suffers from significant issues that were not addressed by defendant in his 

motion.

Without meeting the required threshold, the judge properly refused to 

order a custody investigation and hearing on the issue.

Affirmed.