A teenaged child’s preference to change residential custody is but one factor that a Court must consider when transferring custody to the non-custodial parent.
On January 17, 2013, the Appellate Division, in Atherholt v. Hunter, reiterated a well-settled principal that New Jersey Courts are required to hold a plenary hearing (mini-trial) before changing custody and must analyze the factors set forth in N.J.S.A. 9:2-4, even when an older child expresses a desire to live with the other parent.
The case came to the Appellate Division when the mother, Mary Atherholt, appealed a Family Part Order that granted her ex-husband, Michael Hunter, residential custody of their fourteen (14) year old son M.H. after an interview with the child, but without a plenary hearing. The Family Part judge found several factors that justified granting the Father custody, including but not limited to: M.H.’s preference to live with his father, the higher quality of educational facilities accessible from the father’s residence, and the inherent value of a father-son relationship during adolescence, which M.H. was just beginning to enter at the time. This marked the first success after a string of failed efforts by the Father to obtain residential custody of his son. A motion filed earlier by the Father was denied without prejudice in a February 2010 Order, with the parties being ordered to engage in mediation. Upon failure of the mediation the Father filed yet another motion, which was denied in September 2010 by a different judge. At that time a CNA* report recommended that the Father enjoy increased parenting time with M.H., but with the Mother retaining primary custody.
After two in camera interviews, the judge concluded that a change of circumstances had taken place, based in large part on the child’s preferences, and granted the Father residential custody, provoking an appeal. The Family Part Order was reversed by the Appellate Division on the basis that the judge did not hold a plenary hearing when making this decision, to determine the best interests of the child, and that he did not consider each of the factors outlined in N.J.S.A. 9:2-4 (“safety, happiness, physical, mental and moral welfare.") that would culminate in providing the justification for a change in custody.
The appellate division released another opinion on January 23, 2012, again reiterating the necessity of a plenary hearing. In M.I. v. B.I., the trial court conducted an in camera interview of the parties’ fifteen (15) year old daughter, who the court found to be “very sophisticated” and who expressed a desire to live with her father, and indicated her concerns for her mother’s parenting style. The parties have two children. The trial court denied the father’s application for a transfer of custody, without holding a plenary hearing. The trial court expressed concerns about splitting up the two children. The Appellate Division held, that the “views of Amy, then age fifteen, were entitled to significant, albeit not controlling, weight.” The Appellate Division was satisfied that the father had made a prima facie case of changed circumstances, “specifically the preferences of a “very sophisticated” fifteen-year-old girl who expressed a preference for living with one parent and concerns about the parenting style of her then parent of primary residence.” Since the Appellate Division did not find the record to contain sufficient factual support for the judge’s denial of the father’s application, the panel remanded the matter for further consideration, and a plenary if the issues remain contested.
* The Custody Neutral Assessment Program (CNA) is one option to help resolve custody issues when the parties do not agree and when mediation has failed. It involves a mental health professional meeting with the parties and advising the Court of the concerns and considerations.