PER CURIAM.
In this custody dispute, defendant Shandon A. Willey appeals from a December 12, 2013 Family Part order, which denied his application for sole legal and physical custody of a child he had with plaintiff Shantele Stewart. Defendant also appeals from a February 6, 2013 interim parenting time order, and a November 27, 2012 child support order. While this appeal was pending, we temporarily remanded to the trial court to address issues relating to the child's immediate welfare. Because those remand proceedings resolved issues of physical custody, parenting time, and child support, we dismiss those aspects of the appeal as moot. For the reasons that follow, we affirm the order granting the parties joint legal custody.
The parties, who were never married, have a son who was born in July 2008. Defendant has been employed with the United States Air Force since February 2004, and currently works at the Joint Base McGuire-Dix-Lakehurst (the base), where he has resided since August 2011. Plaintiff lives with her mother in her mother's home in Pemberton, New Jersey, which borders the base.
In November 2008, while defendant was deployed overseas, the parties ended their romantic relationship. Upon defendant's return in June 2009, he regularly visited with his son and continued to pay child support, as he had in the past.
In May 2010, defendant was deployed to Afghanistan for six months. He communicated with plaintiff through e-mail and Facebook until he returned in October 2010. Before leaving, defendant gave plaintiff a book containing his recorded voice to present to the child on the child's birthday. Defendant claimed that plaintiff mocked this gift on her Twitter page. He further claimed that plaintiff made other inappropriate internet postings during this time.
Also in May 2010, the child's pediatrician diagnosed him with a speech delay and recommended early intervention, which plaintiff neither pursued nor informed defendant about. The child began attending daycare in August 2010 at the Child Development Center (CDC) on the base so that plaintiff could begin a new job. After a few months, the child's teacher, Gail Grandinetti, observed he had a speech delay and expressed concerns about his development, leading her to refer the child for speech therapy. However, plaintiff did not enroll the child in speech therapy, and instead falsely represented to Grandinetti that he was receiving speech therapy at home.
After Willey returned from deployment to his home in Philadelphia in October 2010, the parties' relationship, and their communications about parenting time, improved. Their relationship continued to improve when defendant moved to the base in August 2011, where he was then able to spend some weekday nights with the child. On November 3, 2011, the parties entered into a consent order in which they agreed to joint custody, with plaintiff designated the parent of primary residence (PPR). The order did not include a parenting schedule due to defendant's scheduled deployment. Around this time, defendant became concerned about the child's development. The parties then met with the daycare staff, who referred them to the Pemberton Early Childhood Education Center (PECEC).
While deployed, defendant communicated with plaintiff via the internet. In February 2012, defendant learned that the child had not been enrolled in the PECEC, as he had expected, nor had any further evaluations been conducted.
Defendant returned from deployment in April 2012, and resumed a parenting time schedule similar to that which he previously enjoyed. He noted that the child's development was largely unchanged. After a family member expressed concern that the child might be autistic, defendant obtained plaintiff's consent to consult a doctor on the base.
Defendant subsequently secured a prescription for speech therapy and for an evaluation at the Children's Hospital of Philadelphia. Following a speech therapy evaluation at Classic Rehabilitation Ltd. (CRL) on September 27, 2012, the child was diagnosed with a "severe receptive and expressive language disorder" that caused a "decreased ability to appropriately verbalize his needs and thoughts." CRL recommended therapy twice per week for one year and stated that "[p]rogress is contingent upon applied intervention and a strong home program to facilitate carryover from the outpatient center to the home environment." After plaintiff missed appointments in October and November 2012, defendant then took the child to all the appointments. Also, at defendant's request, PECEC evaluated the child, which resulted in his enrollment in a special education preschool class in January 2013.
On October 5, 2012, defendant filed an application for post-dispositional relief, in which he sought to enforce a split parenting time schedule. In turn, plaintiff filed an application for an order of child support from defendant, who had previously been paying on a voluntary basis. On November 27, 2012, a hearing officer ordered defendant to pay child support of $145 per week pursuant to the New Jersey Child Support Guidelines (Guidelines).
In the interim, on November 21, 2012, defendant filed an amended application, seeking sole legal custody. Defendant alleged that plaintiff was intentionally depriving him of his parenting time, and that she was not attending to the child's special needs. In addition to his concerns about the child's developmental needs, defendant had learned from the child's dentist, Dr. Susan Armstrong, that the child had severe dental decay in multiple teeth that plaintiff had failed to properly address.
Defendant again amended his application on November 27, 2012, seeking to modify the child support order entered that day by the hearing officer. As grounds for this relief, defendant certified that he sought "to modify this child support order in view of my application to modify custody."
On February 6, 2013, the court heard oral argument and entered an interim order granting defendant parenting time on alternate weekends from 4:00 p.m. on Thursday to 6:00 p.m. on Sunday, and from 4:00 p.m. every Wednesday until school drop-off on Thursday mornings. The court also ordered the parties to submit to a custody neutral assessment (CNA), which was completed after some delay.
On July 3, 2013, the court ordered a plenary hearing, which took place on August 21, 2013. Both parties testified, and defendant also called Grandinetti, Armstrong, and Sara Stern, the child's behavioral therapist, as witnesses. On October 24, 2013, the trial court issued its written opinion. The judge analyzed the factors set forth in
Defendant appealed the trial court's orders. While the appeal was pending, we temporarily remanded to the trial court to address issues relating to the child's immediate welfare. Following a hearing on November 12, 2014, before a second Family Part judge, at which the parties appeared and testified, defendant was designated PPR, with the parties maintaining joint legal custody. Plaintiff was granted parenting time every other Saturday and Sunday from 9:30 a.m. until 6:00 p.m., and additional parenting time when the child is not receiving medication. Additionally, the court modified the November 27, 2012 child support order, effective immediately, in accordance with the new custodial arrangement and parenting time schedule. An amended order was entered on November 18, 2014, to formalize the provisions set forth in the court's handwritten November 12 order.
On appeal, defendant initially raised the following points for our consideration:
Prior to oral argument, defendant's counsel advised the court that the issues raised in Points One (B), Four, Five, and Six were rendered moot by the remand proceedings. Defendant continues to argue that the trial court erred in awarding joint legal custody (Point One (A)), in affording insufficient weight to plaintiff's public internet displays and unstable home environment (Point Two), and in failing to modify child support retroactively (Point Seven).
Our scope of review of child custody determinations is limited. The conclusions of trial judges regarding child custody are "entitled to great weight and will not be lightly disturbed on appeal."
Initially we note, and defendant concedes, that the issues relating to physical custody and parenting time have been rendered moot by the remand proceedings. Defendant has now been designated PPR, and a new parenting time schedule ordered, which defendant does not challenge. "An issue is `moot' when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy."
We similarly conclude that defendant's argument, that the trial court erred in denying his request for modification of child support, is also moot. Defendant's application to modify support was predicated on his contemporaneous request to modify the custody and parenting time arrangements upon which the November 27, 2012 child support order was calculated. That result was achieved when on remand the second judge simultaneously awarded defendant physical custody, established a new parenting time schedule, and reduced defendant's child support obligation on November 12, 2014.
To the extent that defendant continues to argue that any modification to his child support obligation should be retroactive to the November 2012 filing date of his application, we deem such contention to lack merit. As noted, the November 27, 2012 child support order was based on the shared parenting provisions of the Guidelines, with defendant exercising parenting time with the child three overnights per week. On February 6, 2013, the judge entered an interim order that effectively reduced defendant's parenting time from six overnights every two weeks to five, with no corresponding increase in his child support obligation. Ultimately, the court's December 12, 2013 order awarded defendant six overnight visitations, which was consistent with the child support order. We acknowledge that the December 12, 2013 order may have increased defendant's responsibilities to schedule appointments to attend to the child's medical, developmental, and educational needs. Notwithstanding, there is insufficient evidence in the record that this significantly impacted either party's parenting time. Absent such a significant change in parenting time, we find no basis to deviate from the Guidelines, which may be "disregarded ... only where good cause is shown."
The primary issue remaining on appeal is defendant's contention that the court erred in not awarding him sole legal custody. Defendant asserts that joint legal custody is not appropriate because plaintiff has proven an unwillingness or inability to cooperate or communicate with him about the child's health, safety, and well-being.
Custody disputes are resolved using a best interests analysis.
Joint legal custody is preferred when feasible because it is likely to foster the best interests of the child.
While joint custody is preferable, certain factors of the best interests of the child standard are paramount: the parents must be fit, must be willing to accept custody, and must be able to cooperate and communicate regarding essential matters of parenting.
Further, "the prime criteria for establishing a joint legal custodial relationship between divorced or separated parents centers on the ability of those parents to agree, communicate and cooperate in matters relating to the health, safety and welfare of the child notwithstanding animosity or acrimony they may harbor towards each other."
In the present case, the judge thoroughly analyzed the factors set forth in
The court found that both parents raised concerns about the child's development. However, while defendant played a significant role in getting the child early intervention, plaintiff "has demonstrated either an unwillingness or inability to engage in early intervention services which have been recommended and are available" and "has not clearly proven her ability to ensure that [the child] attends necessary services in a timely, consistent and effective manner." Accordingly, the court ordered that defendant "have sole legal rights and decision-making authority for any of [the child's] medical, dental, and developmental needs including education, therapy, and interventions."
Nonetheless, the court cited other factors that made an award of joint legal custody feasible. Despite the parties' conflicts, the court found "both of these parents are fit for custodial purposes, and they both willingly seek the responsibility concomitant to the role of a custodial parent." Also, "[t]hese parents have, at times, demonstrated an ability to act in concert for the best interest of their child on certain major issues in his life." The court specifically determined that the child "currently enjoys a happy childhood," that "[p]laintiff and [d]efendant are both good parents," and that the child is "entitled to have the benefit of two fully functioning parents" through joint legal custody. The court concluded that joint legal custody was in the child's best interest, and emphasized the seriousness of denying a parent "the right to meaningfully participate and influence the major decisions of childhood."
While generally fit, plaintiff was unable or unwilling to properly address the child's medical, educational, and developmental needs. Although the court awarded the parties joint legal custody, it fashioned an appropriate, equitable remedy by granting defendant sole legal authority to address the child's needs in the specific areas where plaintiff was deficient. As the judge aptly noted, the parties have in the past demonstrated an ability to communicate on major issues. While a close call, we can indeed envision other areas, such as the child's religious upbringing, where plaintiff's input may be beneficial. Though out of the ordinary, under the facts presented, the judge's decision represents a reasoned exercise of discretion, with which we will not interfere. "The Family Court possesses broad equitable powers to accomplish substantial justice."
We also note that, on remand, while the second judge considered additional testimony and evidence and determined that defendant should be granted physical custody, he left the award of joint legal custody undisturbed. At oral argument, defendant's counsel posited that the second judge may have felt constrained to only consider "immediate issues," and not revisit the issue of joint legal custody. However, lacking the transcript of the remand proceedings, or the second judge's decision, we are unable to independently determine why the second judge, confronted with this additional evidence, nonetheless saw fit to continue joint legal custody.
Accordingly, we affirm the award of joint legal custody. We do so without prejudice to defendant's right to move in the trial court for sole legal custody based on developments which have occurred since this appeal was taken. Indeed, the parties always have that opportunity, as custody and parenting time are subject to continuing review.
Dismissed in part. Affirmed in part.
