Faucett v. Vasquez
984 A.2d 460, 2009 N.J. Super. LEXIS 265, 411 N.J. Super. 108 (2009)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A parent of primary residence's (PPR) military deployment for a significant period, such as one year or more, constitutes a prima facie showing of changed circumstances affecting the child's welfare. This showing entitles the non-PPR parent to a plenary hearing to determine if a temporary modification of custody is in the child's best interests.
Facts:
- Plaintiff father and defendant mother divorced in 2001 and shared joint legal custody of their son, Billy.
- A 2002 court order designated the plaintiff as the parent of primary residence (PPR) during the school year, and the defendant as PPR during summer vacations.
- The plaintiff, a member of the U.S. Army, received orders for a year-long deployment to Iraq, scheduled to begin in February 2009.
- Plaintiff arranged for his current wife, Billy's stepmother, to care for the child in the family home during his deployment.
- Billy had lived with his father and attended the same school system since kindergarten.
- The defendant mother, who lived approximately two hours away, sought an immediate transfer of residential custody for the duration of the plaintiff's deployment.
- Defendant argued that as the biological mother, she should have custody over the stepmother during the father's absence.
Procedural Posture:
- Following a divorce, a 2002 trial court order established a custody arrangement for the parties' son.
- In 2008, the defendant cross-moved in the trial court to be designated Parent of Primary Residence, which was denied without prejudice, and the parties were ordered to mediation and a Custody Neutral Assessment.
- In January 2009, defendant filed an application for an order to show cause for immediate transfer of custody due to plaintiff's deployment, which the trial court denied.
- Defendant then filed a formal motion in the trial court to modify custody for the duration of the deployment.
- The trial court denied the motion for an immediate change of custody 'without prejudice,' but increased defendant's parenting time and ordered a new custody evaluation.
- Defendant, as appellant, appealed the trial court's denial of her motion to the Superior Court of New Jersey, Appellate Division.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a parent of primary residence's (PPR) impending military deployment for a year or more constitute a prima facie showing of changed circumstances affecting the child's welfare, thus entitling the non-PPR parent to a plenary hearing on whether a temporary custody modification is in the child's best interests?
Opinions:
Majority - Messano, J.A.D.
Yes. A parent of primary residence's impending military deployment for a year or more constitutes a prima facie showing of changed circumstances, which requires the court to hold a plenary hearing to determine the child's best interests. The court rejected the defendant mother's argument that she had a presumptive right to custody over the stepmother, reasoning that the dispute is between two fit parents over a modification to an existing order, not an initial custody determination between a parent and a third party. The parental preference doctrine from cases like Watkins v. Nelson does not apply because the stepmother is not seeking custody in her own right and the PPR's absence is temporary. However, the court also found that a year-long deployment is a circumstance of such magnitude that it is inherently a significant change affecting the child's welfare. Therefore, the moving parent meets the threshold burden to be granted a full hearing where they can present evidence on whether a temporary custody modification is in the child's best interests.
Analysis:
This decision creates a new framework for custody disputes arising from military deployment, a recurring issue for which there was no prior precedent in New Jersey. The court strikes a balance by rejecting an automatic transfer of custody to the non-deployed parent while simultaneously recognizing that a long-term deployment is a significant 'changed circumstance' requiring judicial review. This establishes that the non-deploying parent's motion cannot be dismissed outright; they are entitled to a full hearing on the merits. The ruling provides a clear procedural path for family courts, ensuring that the child's best interests remain the central focus while avoiding a rule that could unfairly penalize a parent for their military service.
