NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
In these consolidated appeals, the parties appeal from two Family Part orders. Plaintiff Y.V. appeals from a December 11, 2009 order granting the parties joint legal and physical custody of their child, and defendant L.A.M. appeals from a February 5, 2010 order denying his motion to vacate child support. For the reasons that follow, we reverse and remand for further proceedings.
Plaintiff and defendant were never married. They met in May 2006 and, according to defendant, had an "on and off going relationship." On October 16, 2007, plaintiff gave birth to their only child together, a son, V.M.
On July 29, 2008, the court ordered that temporary custody of V.M. was to be "continued with Y.V.."1 The order also stated that defendant was to have the following parenting time schedule: "[A]lternating weekends starting Saturday morning 8:00 am to Sunday 7:00 pm. Every Monday and Wednesday from 8:00 am to 12:00 pm. Pickup and drop off at plaintiff's home."
Over one year later, on September 25, 2009, plaintiff filed a domestic violence compliant against defendant. According to the complaint, at 7:45 a.m. that morning: "Defendant appeared at plaintiff's home unannounced and in non-compliance with the FD parenting time order and attempted to forcefully remove [V.M.] by grabbing plaintiff by the arms." The complaint also indicated that defendant had physically grabbed plaintiff on two prior occasions, in the Fall of 2008 and in June 2009. On the same day, September 25, 2009, the court entered a temporary restraining order (TRO). That order awarded plaintiff temporary custody of V.M. and suspended defendant's parenting time.
At a hearing on November 4, 2009, the court found plaintiff more credible than defendant and granted a final restraining order (FRO). The FRO continued temporary custody of V.M. with plaintiff; reinstated defendant's parenting time; and required the parties to return to court on December 11, 2009, to address "any changes in visitation and child support."
In the interim, defendant filed an "application for post disposition hearing" on November 9, 2009, seeking modification of both the parenting time order and his child support obligation; "joint legal and physical custody" of V.M.; and credit for payments he had made to V.M.'s daycare provider.
On December 11, 2009, after oral argument, the court entered the following order:
1. To the extent feasible the parties are considered to have joint legal and physical custody of the parties' child, [V.M.]. [Defendant] will have the parties' child . . . from Monday morning until Tuesday evening. [Plaintiff] will have the child from Tuesday evening until Friday morning. Each parent will have the child from Friday evening until Monday morning on alternate weekends.
2. All parenting time outlined above shall begin on January 1, 2010.
3. Daycare may be split between two places based upon the preference of each parent at the time that parent has parenting time of the child.
4. Vacations will be announced with at least three weeks notice.
5. Child support will remain as is for the time being.
6. The costs of daycare from January 1, 2010 onward will be 50% to each party.
Plaintiff moved for reconsideration, and defendant filed a cross-motion to vacate his child support "based upon the split custody" determination. Both motions were denied on February 5, 2010.
Plaintiff presents the following arguments on appeal:
POINT I
JUDGES MAY DISAGREE WITH THE LEGISLATURE, BUT MAY NOT IGNORE LEGISLATIVELY-IMPOSED PRESUMPTIONS, INCLUDING THE PRESUMPTION AGAINST JOINT PHYSICAL CUSTODY FOLLOWING AN ACT OF DOMESTIC VIOLENCE.
POINT II
THE COURT BELOW FAILED TO SET FORTH WHY, A MONTH AFTER DEFENDANT VIOLATED THE PREVENTION OF DOMESTIC VIOLENCE ACT, MODIFYING CHILD CUSTODY IN DEFENDANT'S FAVOR SERVED THE BEST INTERESTS OF THE PARTIES' TWO YEAR OLD SON.
POINT III
THE CUSTODY ORDER SHOULD BE MODIFIED BECAUSE IT FAILS TO ACCOUNT FOR VISITATION DURING FRIDAY DAYTIME.
POINT IV
THE COURT ERRED IN CONSIDERING MOTION PAPERS FILED BY THE DEFENDANT THAT HE DID NOT SERVE UPON [Y.V.]
In addition, defendant raises the following points:
POINT I
PLAINTIFF'S APPEAL CLAIMING TRIAL COURT ERROR IN GRANTING DEFENDANT JOINT RESIDENTIAL AND LEGAL CUSTODY OF 2 YEAR OLD [V.M.] SHOULD BE REMANDED TO THE TRIAL COURT FOR A PLENARY HEARING IN ACCORDANCE WITH N.J.S.A. 9:2-4 AND RULE 5:8-5. JOINT RESIDENTIAL CUSTODY IN PLACE FOR ALMOST ONE YEAR MUST REMAIN STATUS QUO PENDING A FULL HEARING IN ACCORDANCE WITH THE STATUTE, THE RULES, AND THE BEST INTERESTS OF THE CHILD.
POINT II
DEFENDANT'S PROOFS AT A PLENARY HEARING WILL MAKE IT CLEAR THAT A SUBSTANTIAL CHANGE OF CIRCUMSTANCES TOOK PLACE AFTER ENTRY OF JUDGE ALCAZAR'S JULY 29, 2008 ORDER FOR "TEMPORARY CUSTODY."
POINT III
PLAINTIFF'S CLAIMS THAT SHE WAS NOT SERVED WITH DEFENDANT'S MOTION FOR JOINT RESIDENTIAL AND LEGAL CUSTODY AND THAT THE COURT FAILED TO ACCOUNT FOR DIVISION OF CUSTODY DURING FRIDAY DAYTIME ARE MOOTED BY REMAND TO THE TRIAL COURT FOR A PLENARY HEARING.
POINT IV
THE TRIAL COURT ERRED IN FAILING TO ADJUST DEFENDANT'S CHILD SUPPORT OBLIGATION UNDER THE CHILD SUPPORT GUIDELINES FROM A SOLE PARENTING STANDARD TO A SHARED PARENTING/JOINT CUSTODIAL STANDARD AS OF THE ENTRY DATE OF THE JOINT CUSTODIAL ORDER. RATHER THE COURT ERRED IN PROHIBITING ANY MODIFICATION FOR A PERIOD OF SIX MONTHS AND FURTHER FORCED DEFENDANT TO PAY FOR PLAINTIFF'S SHARE OF DAY CARE EXPENSES INCLUDED IN HIS CHILD SUPPORT.
At the outset, we observe that the FRO required the parties to return to court to address two issues: "visitation and child support." Although defendant's subsequent motion requested "joint legal and physical custody," during oral argument on December 11, 2009, plaintiff indicated she never received the motion, and defendant acknowledged he never served her with a copy. Under these circumstances, the court should not have considered defendant's request to modify custody. See H.E.S. v. J.C.S., 175 N.J. 309, 321 (2003) ("At a minimum, due process requires that a party in a judicial hearing receive `notice defining the issues and an adequate opportunity to prepare and respond.'") (quoting McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559 (1993)); Doe v. Poritz, 142 N.J. 1, 106 (1995) ("Fundamentally, due process requires an opportunity to be heard at a meaningful time and in a meaningful manner.").
Nevertheless, the court modified the July 29, 2008 parenting time order. Plaintiff argues——and defendant concedes——that the court should not have modified the order without the benefit of a plenary hearing. We agree. See Faucett v. Vasquez, 411 N.J.Super. 108, 119 (App. Div. 2009) ("Absent exigent circumstances, changes in custody should not be ordered without a full plenary hearing."), certif. denied, 203 N.J. 435 (2010); see also Wilke v. Culp, 196 N.J.Super. 487, 501 (App. Div. 1984) ("It is basic that a case should not be decided merely on the basis of conflicting affidavits, or an inadequate record.") (internal citations omitted), certif. denied, 99 N.J. 243 (1985).
Moreover, our independent review of the record confirms that the court did not consider the factors listed in N.J.S.A. 9:2-4(c) as a prerequisite to "making an award of custody"; did not state its factual findings as required by N.J.S.A. 9:2-4(f); and failed to properly consider the presumption "that the best interests of the child are served by an award of custody to the non-abusive parent," N.J.S.A. 2C:25-29(b)(11).
Accordingly, the December 11, 2009 order is vacated, and the matter is remanded to the Family Part to conduct a hearing in accordance with this opinion. Pending the outcome of the hearing, the parties shall comply with the temporary custody and parenting time order dated July 29, 2009. Based on this disposition, we need not address the parties' remaining arguments.
Reversed and remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.
