SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-1237- 22 MARILEE NEGRON, Plaintiff-Appellant,

v. JEAN C. BENITEZ, Defendant-Respondent.

_________________________

Argued October 25, 2023

– Decided December 4, 2023 Before Judges Enright and Paganelli. On appeal from the Superior Court of New Jersey , Chancery Division, Family Part, Cumberland County, Docket No. FD- 06

- 1555 -11. Marilee Negron, appellant, argued the cause pro se. Respondent has not filed a brief.
PER CURIAM In this one -sided appeal, plaintiff challenges the November 16 , 2022 or der denying her motion to stay or reconsider the partie s' April 28, 2022 consent NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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- 1237

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order. Following our review of the record and the applicab le legal principles, we affirm. We recite the facts and procedural history from th e Family Part record. Plaintiff and defendant are the parents of a fifte en -year- old son . Since 2016, t he parties abided by an order that provided plaintiff with primary residential custody of the parties' son, fixed defendant 's child support obligation and granted him "a substantial amount of parenting time ." On January 10, 2022, defendant filed an emergent appl ication, seeking to be designated the parent of primary residence. He alleged : plaintiff kept hitting the ir son; her "boyfriend and brother [w ould ] hold their . . . [son]" ; the "boyfriend tried to grab [the ir son ]"; and the son was "tired of the physical and mental abuse" in plaintiff's home , had run away from her ho me , and no longer wanted to live with plaintiff

. The judge granted the emergent application and awarded defendant "temporary sole custody" of the c hild until further order of the court. The parties were referred to the D ivision of Child Protection and Permanency (DCP&P). On January 19, 2022, the matter returned to court. Present for the hearing were: plaintiff, her attorney, defendant, and a re presentative from DCP&P. The DCP&P representative reported to the court that the re were "no signs of abuse3 A- 1237

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or neglect; no history of DCP&P involvement and both parties' homes we re safe and appropriate." The representative also stated th e matter in dispute seemed to be a "custody issue." The parties agreed the child "probably" wanted to r eside with defendant. Therefore, despite "no real change of circumstance" and "no abuse or neglect[]" finding by DCP&P, the judge entered an order on January 21, 2022 that provided for the parties to share parenting time on a " 50/50 " basis. Further, the order required the child to appear "for an in[-]being inte rview with [the judge] to take place in

. . . chambers" and for the matter to return "for a hearing to discuss the issues of custody and parenting time ." On February 2, 2022, the parties returned to court for another hearing. The parties addressed concerns with "conflicts" in pla intiff's home and "miscommunication" between plaintiff and the child. Plaintiff acknowledged that the child m ight not want to spend time with her and th ere were concerns with their level of communication. Therefore, she was " agreeable to do therapy with [the child]." On February 7, 2022, the judge entered an order pro viding, in pertinent part : (1 ) the "parties shall have joint custody of the minor child . . . with [defendant] as the parent of primary residence and [plaintiff] as the parent of4 A- 1237

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alternate residence" ; (2 ) "the child shall have no unexcused absences from school"; (3 ) plaintiff "shall have open and liberal parenting ti me with the minor child and the child shall spend no less than two da ys per week with [plaintiff] on days to be worked out between [plaintiff] and th e child"; (4 ) "[ t]he parties shall allow the child to move between both parties' homes" ; and (5) plaintiff shall "set up counseling sessions to include [plain tiff] and the child . . . . The sessions may include [defendant] to the extent that the counsel or believes [defendant] should be included ." On March 16, 2022, the judge interview ed the child. The child explained that defendant encourag ed him to see plaintiff. However, he was "half/half" about seeing her; had to think about how often he w anted to see her; and did "not really" "want to spend a couple days a week wi th" her. Nonetheless, the child agreed to "visit" plaintiff and "work [ his ] way into staying over." On April 11, 2022, the judge conducted another hea ring with the parties. The child had only s een plaintiff "maybe three times" and the two had not engaged in counseling. Plaintiff recognized the li ving situation "probably was not going to go back to the way it was . . . ," but wanted "something where she could see [the child] on the weekends, or every oth er weekend . . . ." She also acknowledged the child "could not be forced."5 A- 1237

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The judge executed the parties' consent order, as p repared by plaintiff's attorney, on April 28, 2022, which memorializ ed the parties' revised custody agreement. The consent order provided:

(1) [t]he parties shall continue to share joint leg al custody of the minor child . . . with the [d]efenda nt designated as the parent of primary residence and t he [p]laintiff designated as the parent of alternate residence ; (2) the [p]laintiff shall exercise parenting time every other weekend . . . with additional parent ing time being open and liberal as agreed between the parties; . . . (4) [a]ll other provisions of the pr evious orders shall remain in full force and effect. Following the entry of the April 28 consent order, plaintiff filed a pro se motion for reconsideration. The judge addressed the motion on July 18 , 2022.
He characterized her application as an attempt to "revert back to the [2016] order, agreement of custody and parenting time wher e she was [the parent of] primary [residence] and dad was [the parent of ] alternate [residence], with a parenting time schedule . . . ." Plaintiff argued that the custody arrangements unde r the April 28 consent order w ere not in the child's best interest because: (1) def endant posted a picture with the child and a water gun; (2) defendant permi tted his seventeen-year- old niece to accompany the child to a doctor's appointm ent; (3) the child "was late6 A- 1237

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to school all the time"; (4) defendant posted a pic ture of marijuana ; and (5 ) defendant posted "derogatory" or "unpleasant" messa ges about plaintiff. The judge was not persuaded by these arguments, and noted that plaintiff "entered into a consent order when represented by e xperienced counsel. And [she] rather promptly filed a motion to seek to mod ify the consent order that [she] entered into." The judge entered an order on July 18, 2022, denying the motion after finding "plaintiff was represented by very competent counsel"; there was no evidence the [April 28] consent order was entered into "without due consideration of the parties who measured the p ros and cons of proceeding to a final hearing"; and "there's been no change of circumstances." The judge explained that he did not find plaintiff an unfit m other, rather, after his interview with the child and considering all the facts , he determined "the best interests of the child" required the change in custody and paren ting time. The judge also included in the July 18 order a prohibition against "the parties post [ing] derogatory remarks on any social media platform abo ut each other or regarding the minor child." On August 10, 2022, plaintiff filed another motion to modify the existing custodial arrangements. The judge heard argument o n the application on November 16, 2022. The judge described the motion as "really being the same7 A- 1237

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[as the] motion [for reconsideration ] that was . . . heard previously." He noted plaintiff's "verbiage [wa]s the same with . . . add itional language." Plaintiff described her motion as a request for a stay so she could appeal from the Apr il
28 , 2022 order. Therefore, the judge considered plai ntiff's application as a request for a stay of the April 28 order, denied th e request, and denied plaintiff's motion for reconsideration. He entered a conforming order on November 18,
2022. On appeal, plaintiff argues:

I. The trial court judge erred by changing custody to the defendant when there was no substantial change in circumstances. II. The trial judge erred by being more concerned with keeping his orders in place than the well-being of my child.
III. The trial judge erred by not considering the evidence presented, even though the defendant showe d to be a dangerous role model. "We have a strictly limited standard of review fro m the fact-fin dings of [a] Family Part judge." N.J. Div. of Youth & Fam. Servs. v. I.H.C., 415 N.J. Super. 551, 577- 78 (App. Div. 2010) (citing Cesare v. Cesare , 154 N.J. 394, 411 (1998))

. " The general rule is that findings by the [judge] are b inding on appeal when supported by adequate, substantial , [and] credible evidence." Cesare, 1548 A- 1237

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N.J. at 411 -12. We will only reverse if the judge's findings were "so mani festly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of jus tice, and [we] . . . ponder[] whether, on the contrary, there is substantial evid ence in support of the . . . judge 's findings . . . ." Rova Farms Resort, Inc. v. In vestors Ins. Co. , 65 N.J. 474, 484 (1974) (internal citations omitted). However, "[a judge's] interpretation of the law and the legal consequence s that flow from established facts are not entitled to any special deference." N.J. Div. Of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2 006) ( quo ting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 3 66, 378 (1995)). In custody cases, "the primary and overarching cons ideration is the best interest of the child." Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). Our "Legislature [has found] and declare[d] that it is the public policy of this State to assure minor children of frequent and continuing contact with both parents . . . ." N.J.S.A. 9:2-4. In this pursuit, the sta tute requires that "[t]he [judge] shall order any custody arrangement which is agreed to by both parents unless it is contrary to the best interests of the child." N.J.S.A. 9:2-4(d) (emphasis added). The Legislature's intent is clear, the judg e is mandated to sign the order when the parents agree to a custody arrangement unl ess the judge finds it is not9 A- 1237

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in the child's best interests. See Harvey v. Bd. o f Chosen Freeholders, 30 N.J. 381, 391 (App. Div. 1959) (the word "shall" is gene rally mandatory). When "making an award of custody," courts must cons ider the following factors under N.J.S.A. 9:2-4 in a "best interests" analysis:

the parents' ability to agree, communicate and cooperate in matters relating to the child; the par ents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationsh ip of the child with its parents and siblings; the histor y of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of suffici ent age and capacity to reason so as to form an intelli gent decision; the needs of the child; the stability of the home environment offered; the quality and continuit y of the child's education; the fitness of the parent s; the geographical proximity of the parents' homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents' employment responsibilities; and the age and number of the children. [N.J.S.A. 9:2-4.] "The decision to deny a motion for reconsideration falls ' within the sound discretion of the [judge], to be exercised in the i nterest of justice.'" In re Belleville Educ. Ass'n., 455 N.J. Super. 387, 405 ( App. Div. 2018) (quoting Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Di v. 1996)).10 A- 1237

- 22 Reconsideration should be utilized only for those c ases which fall into that narrow corridor in which eithe r [(]1) the [judge] has expressed [his or her] decision bas ed upon a palpably incorrect or irrational basis, or [ (]2) it is obvious that the [judge] either did not consider , or failed to appreciate the significance of probative, competent evidence. Said another way, a litigant m ust initially demonstrate that the [judge] acted in an arbitrary, capricious, or unreasonable manner, befo re the [judge] should engage in the actual reconsidera tion process. [D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990).] Here, the judge's denial of plaintiff's motion for reconsideration rests on three interrelated but separate findings: (1) the parties agreed to a custody arrangement on April 12, 2022 , which was incorporated into the April 28, 2022 consent order; (2) the child's best interests were protected under the April 28 , 2022 consent order; and (3) there were no changed circu mstances between the filing of the April 28, 2022 consent order an d the filing of plaintiff's motion in August 2022. The judge did not abuse his discretion in denying plaintiff's motion for reconsideration of the parties' April 28, 2022 cons ent order

. Indeed, the parties agreed to a revised custody arrangement in April 20 22, and because the judge
f ound the new custody arrangement was in the child's bes t interests, the judge satisfied his statutory obligation and effectuated the parties ' custody and11 A- 1237

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parenting time decision with the entry of the April 28, 2022 consent order. N.J.S.A. 9:2-4(d). In considering the appropriate statutory factors u nder N.J.S.A. 9:2-4 and determining the child's best interests were served by the A pril 28 consent order, the judge concluded the evidence established: (1) the parents agreed to the revised "custody arrangement"; (2) defendant was willing to accept custody of the child; (3) plaintiff and the parties' son had a strained "interaction and relationship" ; (4) the child's "preference" to live with defendant ; 1 (5) defendant's home was "safe and appropriate"; and (6 ) the child's ability to remain in the same school. Therefore, the judge's determination that the custody and parenting time arrangement outlined under the April 28, 2022 consent order was in the child's best interests is "support[ed] by ad equate, substantial, [and] credible evidence." Cesare, 154 N.J. at 411- 12. We are also persuaded that the judge properly reje ct ed plaintiff's argument that recent social media posts, the child's tardine ss at school, and the fact defendant allow ed a seventeen-year-old niece to accompany the child to the

1 In determining the "preference of the child," N.J.S .A. 9:2-4(c), the judge, without objection, conducted an in -camera interview with the child. R. 5:8

- 6.12 A- 1237

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doctor, evidenced a substantial change in circumsta nces and demonstrated the April 28 consent order as not in the child's best i nterests. "A party seeking to modify custody must demonstrate changed circumstances that affect the welfare of the child[ ]." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). "In custody modi fication cases, the burden is on the party seeking mo dif ication to show that, 'due to a substantial change i n circumstances from the time that the current custod y arrangement was established, the best interests of the child would be better served by a transfer in custody. '" Chen v. Heller, 334 N.J. Super. 361, 380 (App. Div. 2000) (quoting Voit v. Voit, 317 N.J. Super. 103, 1 21 (Ch. Div. 199 8) ). A prior custody order, "whether reached by consent or adjudication, embodi es a best interests determination." Todd v. Sheridan , 268 N.J. Super. 387, 398 (App. Div. 1993). With that determination having been made in a prior custody order, a party seeking to modify the order "must bear the threshol d burden of showing changed circumstances which would affect the welfare of the child [] ." Ibid. Guided by these principles, we are convinced the ju dge correctly determined plaintiff failed to satisfy her burden i n showing circumstances had substantially changed between the entry of the Apri l 28 consent order and the13 A- 1237

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filing of her reconsideration motion less than four months later to justify the transfer of primary residential custody back to pla intiff. To the extent not addressed, plaintiff's remaining points lack sufficient merit to warrant discussion in a written opinion. R. 2:11 -3 (e). Affirmed.