L.J.M. v. B.S.B.
Docket No. A-5284-09T2
- B.S.B. (father) appeals from the February 2010 Order, which modified the existing parenting time arrangement with respect to the parties’ daughter.
- Father and L.S.M. (mother) were never married. Pursuant to a 2001 consent order, the parties share joint legal custody of their 11-year-old daughter with mother’s home being the primary residence. The consent order does not provide a specific visitation schedule. A schedule evolved based on the parents’ practice.
- In July 2009, mother moved to modify the parenting time status quo. Father cross-moved to modify his visitation to extend his Wednesday parenting time. The judge heard oral arguments and denied the motion and cross-motion. She determined that the present parenting time status quo should remain unchanged and that neither party had made a prima facie showing of a change in circumstances.
Father appeals, contending that he showed significant change in circumstances and this showing warranted a plenary hearing. He also contended that the judge erred in denying his request to extend his Wednesday parenting time based on a finding that there was no significant change in circumstances, and that the best interest of the child warrants a change of the current visitation schedule.
- “It is well settled that the law favors visitation and protects against the thwarting of effective visitation rights.” Wilke v. Culp, 196 N.J. Super. 487, 496 (App. Div. 1984) (citing In re J.S. & C., 129 N.J. Super.486, 487, 489 (Ch. Div. 1974), aff’d o.b., 142 N.J. Super. 499 (App. Div. 1976), certif. denied, 99 N.J.243 (1985)).
- “[C]ourts should endeavor that children of separated parents should be imbued with love and respect for both parents, and where children are in custody of one parent, the court should endeavor to effect this facet of the children’s welfare by conferring reasonable rights of visitation on the other parent.” Ibid.(citing Daly v. Daly, 39 N.J. Super. 117, 123 (J. & D.R. Ct. 1956), aff’d 21 N.J. 599 (1956)).
- “’[T]he matter of visitation is so important, especially during the formative years of a child, that if a plenary hearing will better enable a court to fashion a plan of visitation more commensurate with a child’s welfare’ a plenary hearing must be required by the court even if the parties have waived it.” Fusco v. Fusco, 186 N.J. Super. 321, 327 (App. Div. 1982) (quoting Wagner v. Wagner, 165 N.J. Super. 553, 555 (App. Div. 1979))
- “[A] primary concern in determining questions of visitation and custody is the best interests of the child.”Wilke, supra, 196 N.J. Super. at 497 (citing Fiore v. Fiore, 49 N.J. Super. 219 (App. Div.), certified. Denied, 28 N.J. 59 (1958))
- “The courts of New Jersey have expressed a policy encouraging protection of family relationships by favoring full visitation rights in order to insure that [the children] shall not only retain the love of both parents but shall at all times and constantly be deeply imbued with love and respect for both parents.” In re J.S.&C., supra, 129 N.J. Super. at 491-492 (alteration in original) (quoting Smith v. Smith, 85 N.J. Super. 469 (J. & D.R. Ct. 1964)
- “A party seeking modification of a judgment, incorporating a [PSA] regarding custody or visitation, must meet the burden of showing changed circumstances and that the agreement is now not in the best interests of a child.” Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div.) (citing Todd v. Sheridan, 268 N.J. Super. 387, 398 (App. Div. 1993), certif. denied, 178 N.J. 34 (2003))
- “[A] judgment, whether reached by consent or adjudication, embodies a best interests determination. It is only when such a determination has been made a judgment entered that moving party must bear the threshold burden of showing changed circumstances which would affect the welfare of the children.”Todd v. Sheridan, 268 N.J. Super. 387, 398 (App. Div. 1993) (citing Sheehan v. Sheehan, 51 N.J. Super.276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958))
Based on the above standard, the court affirmed. The current visitation schedule was set by the agreement of the parties. The schedule is not contrary to the best interest of the daughter. The court found that the judge’s finding that neither party had made prima facie showing of changed circumstances was supported by the motion record.
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