ANDREW FAUCETT V. DARIANNA VASQUEZ
A-2945-08T1
12-17-09
A prior, post-judgment order entered in 2002 awarded
primary residential custody of these divorced parties' eleven-
year old son to the plaintiff/father. When he faced imminent
deployment to Iraq as an Army reservist, defendant/mother, who
shared legal custody of her son and exercised significant
parenting time under the order, moved for modification. She
sought immediate transfer of residential custody of her son and
child support, arguing that between herself and the child's
stepmother, she was presumed to have custody. Determining that
the child should not be uprooted in the middle of the school
year, the motion judge denied the mother's request without
prejudice, but nevertheless ordered a custody evaluation.
Defendant appealed.
We concluded that the "parental presumption" does not apply
under such circumstances and the mother was not entitled to
modification simply because the parent of primary residential
custody was about to be deployed for one year.
However, we also determined that the mother had established
a prima facie case of changed circumstances that affected the
welfare of her son. The judge properly ordered a custody
evaluation, and clearly anticipated further review. We
concluded that the motion judge should not have denied
defendant's motion, and reversed only as to that aspect of the
order.
