Law Lessons from FRANK TRIBUZIO VS. CAROLINA TRIBUZIO, App. Div., A-5174-11T4, February 15, 2013:
“More than financial contests, custody and parenting time disputes trigger the need for a family judge, acting as parens patriae, to prevent harm and protect the best interests of children.” Parish, supra, 412 N.J. Super. at 52-53 (citing Fawzy v. Fawzy, 199 N.J. 456, 474-75 (2009)). N.J.S.A. 9:2-4(d) provides that “[t]he court shall order any custody arrangement which is agreed to by both parents unless it is contrary to the best interests of the child.” See Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (citing P.T. v. M.S., 325 N.J. Super. 193, 215 (App. Div. 1999) (“In issues of custody and visitation the question is always what is in the best interests of the children, no matter what the parties have agreed to.”)). The statute contains a non-exhaustive list of factors the court should consider in making “an award of custody.” N.J.S.A. 9:2-4(c). (“In making an award of custody, the court shall consider but not be limited to the following factors: the parents’ ability to agree, communicate and cooperate in matters relating to the child; the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history 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 sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child’s education; the fitness of the parents; 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. A parent shall not be deemed unfit unless the parents’ conduct has a substantial adverse effect on the child.”)
“‘[A] judgment involving the custody of minor children is subject to modification at any time upon the ground of changed circumstances.’” Innes v. Carrascosa, 391 N.J. Super. 453, 500 (App. Div. 2007) (quoting Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958)). “A party seeking to modify custody must demonstrate changed circumstances that affect the welfare of the children[,]” Hand, supra, 391 N.J. Super. at 105, and that party “bears the burden of proof . . . .” Innes, supra, 391 N.J. Super. at 500.
In contested custody cases, “the court is required to make a record of its reasons for its custody decision and must reference the pertinent statutory criteria with some specificity.” Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). The judge “should reference the . . . statutory scheme at least generally.” Terry v. Terry, 270 N.J. Super. 105, 119 (App. Div. 1994). However, “[t]he best-interest analysis is an additional requirement ‘superimposed upon an analysis of the statutory scheme.’” Kinsella, supra, 150 N.J. at 317 (quoting Terry, supra, 270 N.J. Super. at 119).
In deciding the appropriate custodial arrangement, the judge must consider the child’s best interests, which are the “primary and overarching consideration.” Kinsella, supra, 150 N.J. at 317 (citing Fantony v. Fantony, 21 N.J. 525, 536 (1956)).
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