                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                         SUPERIOR COURT OF NEW JERSEY
                                         APPELLATE DIVISION
                                         DOCKET NO. A-4030-12T2

D.A.1,
                                           APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                                December 22, 2014

v.                                              APPELLATE DIVISION

R.C.,

     Defendant-Appellant.
____________________________________

          Submitted March 19, 2014 – Decided December 22, 2014

          Before Judges Fuentes, Fasciale, and Haas.

          On appeal from Superior Court of New Jersey,
          Chancery   Division,  Family   Part,  Hudson
          County, Docket No. FD-09-1520-02.

          The Abraham Law Firm, LLC, attorneys for
          appellant (Markis M. Abraham, on the brief).

          D'Alessandro & Cieckiewicz, P.C., attorneys
          for respondent (Lori Cieckiewicz and Jaclyn
          Nayar, on the brief).

          The opinion of the court was delivered by

FUENTES, P.J.A.D.

     Defendant   R.C.   appeals   from    the    order   of   the    Chancery

Division, Family Part denying his motion seeking reconsideration

of a prior order of the court which reaffirmed and enforced a

1
  The court elects to use initials for the parties to protect the
identities of the minor children.
parenting time schedule that was part of a Consent Order entered

by the parties ten years earlier.                         Defendant argues the motion

judge   erred      in    failing       to       compel    the     parties        to    submit      to

mediation or alternatively conduct a plenary hearing to address

and resolve the disputed material factual issues raised by the

parties.      Most importantly, defendant argues the judge failed to

interview     the    fourteen-year-old                child     at   the    center          of   this

dispute, as mandated by Rule 5:8-6, and failed to "specifically

place   on    the       record   the        factors       which      justify      any       custody

arrangement not agreed to by both parents."                          N.J.S.A. 9:2-4(f).

      After     reviewing        the    record          developed      before         the    Family

Part, we agree with defendant's arguments and remand this matter

for   the    trial       judge   to     refer         this    matter       to    mediation         as

required under Rule 5:8-1.                      If mediation fails to resolve the

custody and parenting time issues raised by the parties, the

judge   shall       then    conduct         a    plenary      hearing       to    resolve         the

factual disputes contained in the parties' account of events,

and thereafter place on the record his factual findings and

conclusions of law as required by N.J.S.A. 9:2-4(f) and Rule

1:7-4(a).      As part of this hearing, the judge must comply with

the   requirements         of    Rule       5:8-6        by   either       interviewing           the

parties'     now    sixteen-year-old              son    concerning        the    custody         and

parenting time issues raised by his parents, or otherwise place




                                                  2                                         A-4030-12T2
on the record the reasons for his decision not to interview this

child.     In reaching this decision, the judge must consider the

factors outlined in N.J.S.A. 9:2-4(c), including "the preference

of the child," given his age and capacity to reason.

       We discern the following facts from the record developed

before the Family Part.

                                         I

       The parties had a dating relationship from 1996 to 2000.

Their son "Jeremy" (a fictitious name to protect his privacy)

was born in December 1998.          Represented by separate counsel, the

parties agreed to mediate the legal issues concerning their son

and entered into a Consent Order for Joint Custody and Parenting

Time dated April 26, 2002.             This Consent Order comprehensively

addressed and resolved all of the issues generally associated

with   the   rearing    of    the   parties'     then   three-year-old      son,

including agreeing that the child would reside with plaintiff

(mother),    while     giving     defendant     (father)     "reasonable     and

liberal    parenting   time     with    the   child."      The   Consent   Order

included     a   detailed       description     of   the    terms    governing

defendant's parenting time with his son.

       Neither party sought judicial intervention to modify the

terms of this Consent Order until defendant filed a motion on

November 7, 2012, "requesting changes in the custody/parenting




                                         3                             A-4030-12T2
time   terms    of     the    [consent]        order    to    reflect       the     current

practice    and       agreement."         Defendant       claimed         plaintiff       had

voluntarily     agreed       to    this   modification        permitting         Jeremy    to

reside with him because her relationship with her then thirteen-

year-old    son   had       deteriorated        and    become       too    difficult       to

handle, given the demands of time and effort associated with her

then recent employment as a police officer.

       Defendant attached to the notice of motion an "information

sheet" dated October 28, 2012, setting forth the basis for his

request that the court recognize and approve what he claimed was

a de facto, mutually agreed upon voluntary modification of the

custodial   arrangement           established     in    the     2002      Consent    Order.

The following account of events is based upon the allegations

defendant      made    in    support      of    this     motion.           Specifically,

defendant   claimed         that    since   the       Consent    Order      "was     issued

almost   ten    years       ago,    the   [p]laintiff         and    I    have    on    many

occasions   informally        modified      the   custody        and      parenting     time

terms of the Court Order to better align with [Jeremy]'s needs

and best interest."               Although he recognized that his son had

been academically successful during the time he had resided with

his mother, defendant claimed the child had also experienced

"intermittent disciplinary and behavioral issues . . . ."




                                            4                                       A-4030-12T2
    These     issues    became    more       acute    as     the    boy     reached     his

teenage    years.       Defendant       attributes          his     son's      behavioral

problems, at least in part, to plaintiff's "parenting style,"

which defendant characterizes as "ill-suited and ineffective in

addressing" Jeremy's disciplinary problems.                        Defendant alleges

he "regularly got phone calls" from both plaintiff and Jeremy

"expressing    frustration       and    anger,       or     complaints         about    the

other."

    The relationship between Jeremy and his mother continued to

deteriorate    during     the    boy's        pre-teen       years.            Eventually

plaintiff told defendant that "she thought it would be better if

[Jeremy] lived with [him] permanently."                     Defendant claimed that

during the summer of 2012, when Jeremy was thirteen years old,

he and plaintiff "reached [an] agreement that [he] would take

primary custody of [Jeremy], to begin 'officially' when school

started in September [2012]."           They agreed upon a parenting time

schedule   that     permitted    Jeremy       to     meet    with        his   mother   on

Wednesdays    "after    school"        and    stay     with        her    overnight     on

"alternate weekends."        Defendant represented to the court that

this arrangement "has been in effect at least since September

[2012]."

    With respect to child support, defendant claimed plaintiff

agreed to file a motion to modify the Consent Order "to reflect




                                         5                                       A-4030-12T2
this   understanding       in   December        2012   when   she    graduated      from

police academy training.              In the meantime, [p]laintiff agreed

that she would reimburse me in the amount of the child support

payments     I    made    pending     the       modification."        According      to

defendant,       he   decided    to   file       the   motion      seeking    judicial

recognition of this oral agreement because plaintiff told him

"she did not have time [to do it herself] because she was too

busy due to her police academy obligations."2

       Plaintiff submitted her own certification disputing all of

the    material       allegations     defendant        made   in    support    of   his

motion.      As a starting point, plaintiff emphasized defendant

"has a law degree from Harvard and a MBA [Master's Degree in

Business Administration] from the University of Pennsylvania."

She described defendant's conduct during their initial attempts

in 2002 at resolving the custody and parenting time issues as

confrontational and less than completely candid and forthright

on defendant's part.            She was nevertheless thankful that they

were able to reach an agreement that lasted for eleven years

"except for very brief periods of time."

2
  Defendant's reply certification included an alleged verbatim
account of a series of electronic text messages exchanged by the
parties from October 18, 2012 to October 23, 2012, in which
plaintiff acknowledges her intent to "drop" defendant's child
support obligation in recognition of Jeremy's new custodial
status.      Unfortunately,  these   text   messages  were   not
authenticated by the trial court.



                                            6                                 A-4030-12T2
       Plaintiff       cited    the        summer    of      2012     when       she    began     her

academy training to become a police officer as an example of one

of     the    "brief"        departures         from      the       custodial          arrangement

reflected in the 2002 Consent Order.                           Because the time demands

imposed on her by this training coincided with defendant being

unemployed, plaintiff "thought it would be a fine opportunity

for    'father       and     son'     to    spend       more        time   together."             She

insisted,          however,     that        this       was      a     temporary          custodial

arrangement intended to end when she graduated from the police

academy       on     December    14,       2012.        Because        the       exigency        that

necessitated         this     custodial         arrangement          had    ended,       plaintiff

claimed it was in her son's best interest to return to her home.

       With respect to her son's welfare, plaintiff alleges Jeremy

"is exposed to violence at [defendant's] home and that his needs

are    being       neglected."         Her       concern        over       her     son's    safety

emanates       from     defendant's             wife.           Plaintiff          characterizes

defendant's relationship with his wife as "quite violent."                                       She

claims       three    domestic      violence         restraining           orders       have     been

filed between defendant and his wife, "believes" each has filed

municipal       court       charges    against         the     other,       and     claims       "the

police have been called to the home on multiple occasions."                                      She

thus     fears       that    Jeremy        is   "often       put      in     the       middle"     of




                                                 7                                         A-4030-12T2
defendant's   violent     and    dysfunctional         relationship    with    his

wife.

    By way of proof, plaintiff presented to the trial court

(and included in the appellate record) three emails allegedly

sent by Jeremy on the morning of April 11, 2012.                      The first

email, sent at 9:22 a.m., states: "MOM CALL THE POLICE SEND THEM

TO MY DADS [sic] HOUSE [naming defendant's wife] HAS A KNIFE

PLEASE CALL PLEASE CALL THE POLICE AND SENT THEM TO [defendant's

home address]! PLEASE PELASE [sic] PLEASe [sic]."                     The second

email, sent at 9:23 a.m., states: "CALL THE POLICE AND SENT IT

TO MY DADS [sic] HOUSE PLEASE PLEASDE [sic] PLEASE."                   The third

and final email, sent at 9:24 a.m., states: "SEND THEM TO MY

DADS [sic] HOUSE SEND THEM TO MY DADS [sic] HOUSE."

    Plaintiff    claims    she    was       shopping    one   block   away    from

defendant's residence when she received the first email, and

"rushed over."    When she arrived at defendant's apartment, she

"had to knock on the door really hard and had to yell out for

him."   When she finally gained access to the apartment, her son

told her

           that he locked himself in his room when he
           saw the knife.   As we were leaving, I saw
           [defendant] outside the building with his
           daughter [identifies her by name].   I asked
           him what happened.     He simply said that
           "[his wife] was having a hormonal moment and
           left the house."




                                        8                                A-4030-12T2
      Plaintiff          characterizes              defendant's       response    to       the

violence       between      him    and    his   wife     as   "unacceptable."           As   a

result, she "did not allow [Jeremy to go his father's home] for

the     next    3     weeks."        Plaintiff         also     claims    that   at        some

unspecified time defendant and his wife were involved "in a

court     battle      for    their        [six-year]      old     daughter."          It     is

plaintiff's "understanding" that defendant's wife "lost the case

because of her violent tendencies and her drug use."                             Plaintiff

alleges defendant and his wife "have since reconciled and live

together."          Plaintiff concluded this aspect of her certification

by describing defendant's home as "an unstable, violent place

for our son.          A custody transfer to [defendant] would not be in

[Jeremy's] best interest whatsoever."

      Despite         making       these       highly     inflammatory       allegations

against    defendant         and    his    wife,       plaintiff      conceded   that      she

"modified" the custodial arrangement at the start of Jeremy's

freshman year of high school for "approximately two months."

She claims, however, that the custodial arrangement defendant

described in his statement ended when defendant's wife "started

having problems with our son."                       Specifically, plaintiff claims

defendant's wife called her to complain about having to drive

Jeremy     around         because         he        "wasn't     her      child    or       her

responsibility."               Instead         of     immediately       terminating        the




                                                9                                 A-4030-12T2
arrangement,        plaintiff    claims        she    told       defendant's        wife     "to

discuss the matter with [defendant].                        After all, [Jeremy] was

his responsibility as well."

       Plaintiff     describes        her    personal        life      as    nonviolent      and

happy.       She    has    a   stable       relationship         with       "another      police

officer."      She claims her "'significant other' loves [Jeremy]

and [Jeremy] loves him."               She does not have a criminal record

and   "look[s]      forward     to     a    long     career        with     [the]    [p]olice

[d]epartment."         Finally, because she does not have any other

children, she can focus her attention on Jeremy.

       Defendant filed a reply certification noting that he had

not   made    any     inflammatory          allegations          against       plaintiff      in

support of his motion, and then lamenting the ad hominem attacks

plaintiff     had     made     against       him     and     his       wife.        Defendant

addressed and refuted the many instances of impropriety alleged

by    plaintiff.          He   also     emphasized          that       plaintiff     had     not

objected to his regular overnight contacts with his son since

2010.

       Despite defendant's alleged intent to remain above the fray

and   take    the    moral     high     ground       in    this     dispute,        his   reply

certification        is    replete          with     disparaging            allegations       of

plaintiff's confrontational parenting style, including resorting

to    striking       Jeremy      "repeatedly              with     a      broomstick"        and




                                              10                                       A-4030-12T2
threatening him "with a baseball bat."                         We pause here to note

the same seeming contradictions in defendant's position we noted

when we reviewed plaintiff's certification.                          That is, despite

these     highly        disturbing         accusations         and     concerns      about

plaintiff's parenting style, defendant allowed his young son to

reside with his allegedly violent mother for over ten years.

                                              II

                                    The First Hearing

       Both     sides       were       represented     by   counsel      at   the     time

defendant's motion to modify the 2002 Consent Order came before

the    Family    Part       on     December      21,   2012.      Unfortunately,        the

attorneys'       demeanor        and    arguments      echoed    the   vitriolic      tone

reflected       in    the    warring       certifications        submitted    by     their

respective clients.              We are compelled to note at this time the

informality with which the trial judge conducted this motion

hearing.        Although the parties were technically "sworn" by a

Sheriff's Officer at the start, the environment created by the

informal, conversational style of the proceeding was more akin

to a mediation session than an adjudicative hearing.                          This had

the unintended, yet unfortunate effect of yielding more heat

than    light,       ultimately        leaving     unresolved    the    central     issues

raised by the parties.




                                              11                                  A-4030-12T2
    The judge interacted with the parties on the record in a

highly informal manner, asking questions and receiving material

and conflicting factual assertions in response from both the

parties and their respective counsel.       Despite these conflicting

material   accounts   involving   key   events,    the   judge   seemed   at

times to accept or reject these proffers and representations

without having the benefit of a factual record developed through

a traditional evidentiary hearing.

    Through this freewheeling colloquy, plaintiff conceded that

Jeremy had been residing with defendant since she entered the

police academy at the start of the summer of 2012.                In fact,

when the judge asked plaintiff whether "as a practical matter,"

Jeremy resided with his father "right now," plaintiff answered:

"Right now he's staying there, yes."

    However,     defendant   asserted   (without    being   subjected     to

cross-examination)    that   by   mutual   agreement     with    plaintiff,

Jeremy had been residing with him since he graduated eighth

grade in 2010.    The judge addressed defendant directly to ensure

he understood his position:

           THE COURT: Okay. So your position is since
           2010 [Jeremy] has been -- when you say
           staying with you what do you mean by that?

                 . . . .

           DEFENDANT: Yes, Your Honor.   I mean Monday
           through Friday with an understanding that he



                                   12                              A-4030-12T2
           would -- she -- he would be over with her on
           the weekends.    And -- and actually quite
           frequently during those weekends because of
           the confrontations that they would have he
           would actually call me to have him -- pick
           him up . . . . So actually he would end up
           spending more than that.

      Defendant's      counsel    asked    the     judge   "to       put    the     same

question   to   [plaintiff.]"         In      response,        the     judge       asked

plaintiff: "What do you have to say?"                After some equivocation,

plaintiff denied defendant's account and offered to produce her

parents and other friends as witnesses to support her position.

In the midst of this freewheeling exchange, the judge made the

following comment:

           THE COURT: We can -- and we can have
           [Jeremy] come in here too, but I really
           don't want to do that.

           DEFENDANT'S COUNSEL:           Right.

           THE COURT: All right.      Let me make that
           clear. But don't -- let's -- let's hope it
           doesn't come to that now, all right.3

      Despite    the     parties'     intransigence            and      conflicting

positions, the motion judge continued to press for some form of

mediated solution.       Showing his frustration, the judge addressed

the   parties   directly    and    asked:     "Why    do   I    have       to   make     a

decision for the two of you about where your son should stay?"


3
  The judge specifically noted, however, that Jeremy                            was    an
"obviously . . . very smart" fourteen-year-old boy.



                                      13                                        A-4030-12T2
The record shows that fourteen transcript pages of argument and

colloquy    transpired    thereafter.       The   judge   never   received    a

direct     answer    to   his   poignant,     yet   seemingly     rhetorical

question.     At that point, the judge addressed the parties once

again with these final words:

            All right.   I'm going to say something --
            now,    I'm   going   to   say    something.
            [Addressing plaintiff] Let's stop talking
            about [defendant's wife] too, all right, if
            you don't mind. I know you don't mind.

            I -- I think, look, I'm -- I'm trying to
            resolve it, I want to resolve it.      It
            doesn't make sense for the both of you to
            keep coming back here.

            The both of you are working.   The both of
            you are intelligent people.  Now, come on.
            Now, the court order that was in effect
            which has not been amended since 2002,
            correct?

                    . . . .

            All right.   Then that's what I am inclined
            to continue in effect.    Now, the question
            becomes what are we going to do to effect
            liberal parenting time.     And when I say
            liberal I don't mean necessarily every other
            weekend, and I don't know if there's some
            other way we can effectuate long weekends or
            what. I don't know, and I'm not going to go
            through here trying to work out a parenting
            schedule, all right.

            Now, you can either go to mediation, you can
            go today if we can arrange it, or the two of
            you, or all four of you can go into my
            conference room, sit down, and come up with
            a parenting schedule where [defendant] gets
            liberal parenting time.



                                    14                               A-4030-12T2
                 . . . .

           We can do that . . . We can send the parties
           to mediation and see what develops.      I'd
           like to think, as I said, and I'm not saying
           this -- and I don't say this to everyone who
           appears in front of me, you're two very
           intelligent people. Take a step back for a
           moment and try to work this out. Yes or no?
           Are going to try to do something since we
           have the parties here?

    As   an   accommodation   to   the   attorneys'    schedule,     and    in

light of the pending holiday recess, the court scheduled the

matter to return for mediation on Thursday, January 10, 2013.

                                   III

                           The Second Hearing

    When   the   parties   returned     on   January   10,   2013,   nothing

substantive had changed.      The parties remained barricaded behind

their      intransigent,       materially-conflicting           positions.

Plaintiff's counsel apprised the judge that "because there has

been no specific parenting plan [defendant] has taken it upon

himself to keep the child and take the child sometimes more

often than not thereby basically ignoring Your Honor's court

order and thereby depriving my client of residential custody."

Defense counsel responded by asserting that the parties were

           at an impasse in terms of residential
           custody.   There's this kind of amorphous
           liberal parenting time plan where the 14-
           year old who wants to stay at his father's
           house, has demanded to stay at his father's



                                   15                                A-4030-12T2
           house, has been staying at his father's
           house during the week and there has been
           ongoing conflict between the child and his
           mother. There's no violation of the court's
           order.

           What we have is a 14-year old who is as big
           as [his father] who goes to school, who's
           successful in school, who wants to stay with
           his father. We have two parents. We have a
           mother who is demanding that the child stay
           at the house during the week when she's at
           work at -- at last report until eight
           o'clock at night and [defendant] has taken
           on the responsibility of being the custodial
           parent.

    The proceedings continued to be conducted from this point

on in the same informal manner that characterized the December

21, 2012 hearing.      The attorneys continued to make conflicting

factual   representations   to    the   judge   without    any    competent

evidence to support them.     Plaintiff's counsel pressed the judge

to reaffirm his prior ruling and order, and reaffirm plaintiff's

role as the residential custodial parent.            As the following

passage indicates, however, in making this argument plaintiff's

counsel   implicitly   conceded   defense   counsel's     claim   that   the

child was, as a matter of fact, residing on a fulltime basis

with his father:

           PLAINTIFF'S COUNSEL: Your Honor's order
           needs to be enforced.       This 14-year-old
           child is being a 14-year-old child.      He's
           being rebellious.     He doesn't like the
           discipline that my client has at her home.
           At [defendant]'s home he gets to sit in his
           room all day playing his computer games.



                                   16                              A-4030-12T2
            THE COURT: All right.

            PLAINTIFF'S COUNSEL: And that's not what
            happens at [plaintiff]'s home.     So I ask
            that Your Honor finalize this case, end this
            case, not let a 14-year-old dictate the
            terms of a court order, remind [defendant]
            that there is an enforceable court order in
            -- it's actually a criminal violation,
            Judge, as Your Honor knows better than
            anyone else, to deprive someone a court-
            ordered custody or parenting time for more
            than 24 hours.     He's done that time and
            again [apparently referring to defendant].

    This vitriolic exchange of unsupported accusations by the

attorneys    continued     throughout      this    hearing,   interrupted

intermittently    only     by   the   judge's     acknowledgment   of    any

particular statement.      At one point, defense counsel stated:

            DEFENSE COUNSEL: I think that the [c]ourt
            should, A, determine what the real problem
            is here, because if this 14-year old wanted
            to go stay at his mother's that's where he
            would be.   [Defendant] has said it to me.
            If the child wants to get on the bus after
            school and take the bus to his mother's
            house he could do that.

                 . . . .

            [T]hat's   true    that   he's  been    with
            [defendant] for two years. And determine -
            - and determine what this child is saying,
            because I have a client who's telling me,
            this child,   -- and I say child, he's 14,
            wants to stay with me, is doing well with
            me, has conflict with his mother.    And you
            have a mother saying the child should be
            with me because there's an order from 2002
            that says that he should be with me.       I




                                      17                           A-4030-12T2
think the [c]ourt needs to determine exactly
what -- which of those things is true.

THE COURT:    Yeah, well how do I do that?

DEFENSE COUNSEL: Well, A --

PLAINTIFF'S COUNSEL: And -- and the way my -
-

THE COURT: How do I --

    . . . .

PLAINTIFF'S COUNSEL: Hold on.

THE COURT: No, wait a minute, wait a minute,
hold on.     I'm directing the question to
[defense counsel].

DEFENSE COUNSEL: Okay.

THE COURT: How do I do that?

DEFENSE COUNSEL: A, take testimony from the
parties; B, interview the 14-year old,
because he is certainly mature enough to
express to the [c]ourt --

PLAINTIFF'S COUNSEL: I would object to that,
Judge.

DEFENSE COUNSEL: Of course they --

THE COURT: Well -- well, you see, now this
is where we -- this is where we go because I
test -- taking testimony from the parties is
not going to give me the insight that I need
because, as you said, they are diametrically
opposed.    Their [perspective] of what's
going on, all right, is of course, tainted.

DEFENSE COUNSEL: . . . I think what the
[c]ourt needs is a third-party [perspective]
on exactly what's going on, because I think
the [c]ourt is right, when you're faced with



                       18                      A-4030-12T2
            two diametrically opposed views I think that
            an interview with the child, or at the very
            least    appointing    an     evaluator,   a
            psychologist to look at the child, look at
            the parents, and find out exactly what's
            going on.    Because otherwise there's not
            going to be a resolution, because the
            parties are not going to agree.

            [(Emphasis added).]

      Plaintiff's counsel continued to press for enforcement of

the   judge's    supposed      "final      decision"     requiring     residential

custody to remain with plaintiff and relisting the matter only

for   a    determination       of     the       parenting    time     arrangement.

Plaintiff's     counsel   concurred        with    the   judge's    decision   that

taking    testimony     from    the    parties      in   a   formal    evidentiary

hearing, subject to cross-examination "is not going to resolve

anything."       With   respect       to    the   suggestion    that    the    judge

interview Jeremy, plaintiff's counsel stated:

            PLAINTIFF'S COUNSEL:     I will go a step
            further than that[,] to bring a 14-year old
            in, a very smart, perceptive, intelligent,
            understanding 14-year old into Your Honor's
            chambers, into what is a very, no offense to
            any of us, unpleasant atmosphere and choose.
            Well, there's police officers here, there
            are people being handcuffed here. The child
            is going to know.

            THE COURT:      I'm a very pleasant fellow --

                  . . . .

             -- especially when it comes to dealing with
            children, I think.




                                           19                             A-4030-12T2
              . . . .

         PLAINTIFF'S COUNSEL:  -- the other party is
         on drugs or a -- a heavy drinker.      Your
         Honor listened to what needed to be said.
         Your Honor listened to all the allegations
         by both sides and made a decision, a final
         decision.   And now we need to -- the only
         outstanding     issue   is    [defendant]'s
         parenting.

              . . . .

         THE COURT: [Y]ou know what we're going to
         have to do maybe, maybe we're going to have
         to have split custody. Maybe we're going to
         have to have 50/50 split. In fact, the more
         I hear about this situation the more I think
         that that's probably what has to happen.
         Split the custody 50/50, come up with the
         days, and that's what -- that's what we're
         going to have to do.     It's a 14-year-old
         boy.

         Now, let me say this, I'm not sure what he's
         telling his father, but I think . . . that
         there is an issue about him wanting to stay
         with his father.       Now, whether that's
         because he's given, as you say, maybe too
         much freedom as opposed to when he's with
         the mother, that could be, but you know, I
         think right now that the only way that this
         gets resolved with a 14-year-old boy is to
         have a split custody situation and he will
         have to be told in no uncertain terms that
         that's what the [c]ourt order is.     And he
         will have to abide by the order.    And both
         parents, of course, have to abide by the
         order.

         [(Emphasis added).]

    Several more transcript pages later, defendant addressed

the judge directly as follows:




                                 20                     A-4030-12T2
           DEFENDANT: The [custody arrangement] that's
           proposed now, given what's happened just
           since the last time we were in this
           courtroom in trying to -- to have [Jeremy]
           abide by that agreement.   It doesn't work.
           I don't like being put in the position where
           I'm made to somehow look like I'm in
           contempt because --

           THE COURT:     No,    I'm    not    saying     you're   in
           contempt.

           DEFENDANT: -- he absolutely refuses to go
           with his mom or -- or to leave when she
           comes to pick him up.

    The judge then asked defendant if certain variations with

the days of the week in the custody order would be likely to

obtain Jeremy's compliance.         This prompted defendant to respond:

"We can put in another order, but I'm almost certain that we'll

be right back here again because he will not abide by it."

Thereafter,   plaintiff's       counsel     again    pressed    the     court   to

reaffirm what he claimed to have been the court's prior order,

giving plaintiff full residential custody of her                   son.      With

respect to defendant's admonition, emphasizing the likelihood

that Jeremy would "not abide" the court's order, plaintiff's

counsel   argued   that   "[t]his      child   has   to    be   encouraged      and

pushed to comply with the order."           (Emphasis added).

    This prompted the following response by the judge:

           THE COURT:     All right, here's the order of
           the court.     It's split custody 50/50.   You
           [work] out a    plan how you do it, all right.
           You work it    out, you give it to me before



                                       21                                A-4030-12T2
           the end of the day.        That's the order of the
           [c]ourt.

           PLAINTIFF'S COUNSEL:        Why doesn't Your Honor
           -- we're gonna --

           THE COURT: If you don't like it -- if you
           don't -- if either party doesn't like it
           appeal it. That's the order of the [c]ourt.

                 . . . .

           [T]ell the young man he's got to abide by
           the [c]ourt order.

      On January 17, 2013, just one week after the court's order,

plaintiff filed an Order to Show Cause (OTSC) against defendant

before a different judge seeking Jeremy's return by "8:00 p.m.

on   January   18,   2013."      Plaintiff    submitted   a   certification

claiming defendant had "completely disregarded" two court orders

and as a result, she had not seen her son in ten days.                     To

induce   the   court   to     issue   this   emergent   relief,    plaintiff

averred that defendant: (1) refused to bring Jeremy to her home;

(2) rebuked her efforts to retrieve Jeremy; (3) "almost never

answers" her phone calls; and (4) had told Jeremy not to come

home.

      On January 15, 2013, plaintiff sent her sister to pick up

Jeremy at defendant's home, and "[w]hen she was unsuccessful,

[her sister] called the police."             Plaintiff did not have any

personal   knowledge    of     what   transpired   when   police    officers

arrived at defendant's home in response to her sister's call.



                                      22                            A-4030-12T2
Despite this legal impediment, plaintiff averred to the judge

who issued the OTSC that "[s]hortly after the officers arrived,

[defendant]    told    them     that       we     were    still        'waiting    for     a

decision' and the 'court process is still going on.'                         This was a

blatant, bold-faced lie!!!"

    Plaintiff       asked    the    OTSC    judge        to    issue    a   warrant      for

defendant's arrest if he failed to comply with the emergent

relief she was seeking.            The judge who entered the OTSC awarded

plaintiff custody of Jeremy "until further order," and set the

matter down for a hearing on January 24, 2013, before the first

judge.

                                           IV

                              The Third Hearing

    The     trial   judge     opened       this    hearing       by     expressing       his

regrets that the OTSC had been entered on the week he was on

vacation.      After    this       short    preliminary          remark,     the     judge

addressed the parties and counsel directly stating: "[Y]ou guys

can appeal me you can do whatever you want, but I'm going to say

something.    This is coming to an end.                       One way or the other.

Today this is over.         That's the preface."

    Despite the judge's resoluteness and good faith efforts,

the informality and disregard for the rules governing judicial

proceedings continued unabated.                 By way of example, in response




                                           23                                     A-4030-12T2
to the judge asking plaintiff's counsel "what's been going on

since [Jeremy] has been with your client over the past week?",

counsel responded: "[Jeremy told] my client . . . 'I have no

problem living by this 50/50 arrangement if you stop my father's

child support.'"       This brazen attempt at impugning defendant's

credibility     with     incompetent        hearsay     evidence      was   left

unchallenged by defense counsel, and apparently accepted by the

judge without reservation.           In fact, in response to plaintiff's

counsel's assertion, the judge noted: "I'm concerned about what

you raised about the child support statement."

    This prompted some discussion about whether the provision

in the 2002 Consent Order addressing child support should be

amended   to   reflect   the   current      joint-custody     arrangement     the

judge had ordered on January 10, 2013.                The discussion returned

to the issue of custody, and plaintiff's counsel claimed that

things    between   Jeremy     and    his   mother     were   going   "smooth."

Plaintiff's counsel also made the following representation to

the court:

            [Jeremy] is 14-years old.     We have every
            confidence that if [Jeremy] was encouraged
            to comply by [defendant] that he would.
            He's an impressionable young 14-year-old man
            who has to -- really has to -- and I don't
            want to sound -- engage in psychobabble
            here, he has to compete for his father's
            attention with two younger children who also
            live in the home.        And so it's not




                                       24                               A-4030-12T2
                surprising   that          he's      shown      a     bit     of
                [resistance].

                But when he is -- when it's told to him and
                it's emphasized that there are consequences
                for non-compliance he stays out at the home.
                He's been there since Sunday.

      When       asked    by    the     judge      to    respond,       defense      counsel

immediately        seized      upon    his     adversary's          characterization        of

things going "smooth" between Jeremy and his mother to claim

that in fact the converse was the case.                         According to defense

counsel, "rough" was a more apt description of what had taken

place since the police arrived at his client's home.                                 Defense

counsel    noted     the       irony    in    this      situation,      because      it    was

plaintiff's counsel who argued against the judge interviewing

Jeremy     in    chambers      to     avoid    exposing        him    to     the   traumatic

experience of seeing armed police officers in the courthouse.

At   plaintiff's         request,      local      police     officers        responded     two

times to defendant's home in the seven-day period between the

January 10, 2013 hearing and the January 17, 2013 OTSC.

      Defense counsel claimed to have seen text messages sent by

Jeremy to his father asking him repeatedly to come and pick him

up   and   take     him     away    from      plaintiff's       home.         According     to

defense    counsel,       Jeremy       decided     on    his    own     to    walk   to    his

father's home, which is located approximately three miles from

plaintiff's residence.              Again, following the consistent theme of




                                              25                                     A-4030-12T2
this case, counsel's representation was unsupported by competent

evidence.    This prompted the judge to speculate: "Maybe he got

ill because of all this constant bickering . . . between the

mother and the father."

    After    again   drifting   into   discussions   concerning   child

support, plaintiff's attorneys responded to defense counsel's

comments concerning Jeremy:

            PLAINTIFF'S COUNSEL: Your Honor knew that
            there would be some [resistance] to the
            child.

            THE COURT: Right.

            PLAINTIFF'S COUNSEL: There's less resistance
            now then there had been, because when Your
            Honor entered the first order, entered the
            second order, the kid said I'm not going, I
            don't care what any judge tells me.      Now
            he's complying.     That's progress, okay.
            He's at mom's house since -- for a week now,
            okay. Your Honor made a wise, well-informed
            decision. . . . I'm not trying to patronize
            Your Honor.

                . . . .

            PLAINTIFF'S COUNSEL: . . . After Your Honor
            entered the order from December 21st, 2012
            giving my client residential custody and
            continuing the order from 2002 [defendant]
            took the child as he pleased, kept the child
            as he pleased.

                . . . .

            THE COURT: You made your point, you made
            your point why we're here.    You made your
            point . . . .    So let's not argue what we
            argued last time. Okay.



                                  26                          A-4030-12T2
            DEFENSE  COUNSEL:   Your  Honor,  the  real
            problem here, and this is -- I guess it's a
            dispute, I guess it's something that the
            [c]ourt is going to have to get to the
            bottom . . . of, we have a 14-year old
            [boy.]

                   . . . .

            We have a child that does not want to be at
            his mother's. You sent the -- they -- they
            sent the police to his house.      He goes to
            the mother's house, he leaves the mother's
            house.   Now, the police come back to his
            house. And all the while all they're saying
            to you is [defendant] is at fault.

            There's a problem here.    The problem isn’t
            [defendant].   He didn't make his son leave
            her house.   He didn't make her son not want
            to go there.   If the 14-year old wanted to
            go there he would have went there. Nobody's
            -- he's not in a cage. He's a --

            [(Emphasis added).]

    At this point, the judge interrupted defense counsel to

advise both attorneys that he had received that day a "case

blurbs    from   the   bar   association"   concerning   an    unpublished

opinion from this court.         According to the judge, in this non-

precedential decision this court reversed the Family Part for

failing   to     interview   a   fifteen-year-old   child     in   a    matter

involving a change of custody application.           The judge conceded

that he did not have the full opinion, but immediately thought

of this case after reading the synopsis.            To his credit, the

judge candidly admitted that he had been reticent to interview



                                     27                                A-4030-12T2
Jeremy because he wanted to spare the child the emotional trauma

associated with his parents' feud.

    The judge continued:

         But it may have come to that point. Because
         we cannot have the situation continue here
         where   there's    police  involvement,   for
         reasons that I already alluded to. And then
         we have a request made that I should enter
         an order that there be an immediate arrest
         if there's non-compliance.        That's not
         happening.    I'll tell you that right now.
         There   might   be   other sanctions   first,
         monetary or otherwise, but they'll be no
         such order.

         So now here's what I'm wondering.      You're
         right though why we're here.     And I don't
         want to expand the reason why we're here.
         But it's clear to me that despite what I
         think on my best efforts to try to have the
         two of you come together it's not happening.

         So here's what we're going to do, the
         current order remains in full force and
         effect. It has to be obeyed. If either one
         of you want to file an application that
         includes specifically that we interview the
         child you may do so.    Or if the two of you
         agree to that you may do so, but you're
         going to have [to] file a motion.

         I'd like the two of you, if you could, to
         take a look at the case.  I'm going to try
         to get the case. . . . It's unreported, but
         it's [persuasive].

              . . . .

         PLAINTIFF'S COUNSEL:    But someone       has   to
         file the application, Your Honor.

         THE COURT:     Right.   I'm not doing it -- no.




                                  28                          A-4030-12T2
           PLAINTIFF'S COUNSEL: Okay.

                 . . . .

           THE COURT: No, no.   I'm not doing it on my
           own motion. Maybe you can -- you -- I still
           -- let me try one other -- one other
           approach, and I know at one time we
           discussed this, mediation. Is mediation out
           of the question?

    Defendant's     counsel   indicated    his     client   was   "open   to

mediation"; plaintiff herself made clear she was not.             Following

plaintiff's unequivocal rejection, defense counsel indicated his

client   was   equally   unwilling   to   submit    to   this   alternative

process.   Despite the judge's best efforts to convince them to

change their minds, they remained committed to their position

not to mediate.

                                     V

               Defendant's Motion for Reconsideration

    On January 31, 2013, defendant filed a motion requesting

the court to: (1) reconsider the January 10, 2013 order; (2)

grant defendant primary residential custody of Jeremy; (3) order

the parties to submit to mediation; (4) interview Jeremy; (5)

reinstate the parenting time that prevailed from September 2012

to the end of 2012; and (6) modify defendant's child support

obligation commensurate with his status as a parent with primary

residential custody.




                                     29                            A-4030-12T2
       Defendant's motion came before the trial judge on March 18,

2013.        The attorneys recounted the tortured procedural history

of     the    case,     and     continued         to        make    unsupported          factual

allegations.          Conspicuously missing from this exchange is any

reference       to    legal   authority          supporting             or   undermining       the

arguments advanced by either side.                      No statute, court rule, or

case    law     was    cited.        At    the     conclusion,               the    judge    again

reaffirmed his previous order and declined to interview Jeremy.

                                             VI

                                     Legal Analysis

       Against       this   record,       defendant         now    appeals,         arguing    the

trial judge erred in failing to order the parties to submit to

mediation as required under Rule 5:8-1, and failing to consider

and apply the factors outlined in N.J.S.A. 9:3-4 before reaching

a final decision on who should be Jeremy's primary residential

custodial parent.

       We start our legal analysis by reaffirming that "the best

interests of the child" is the fundamental legal principle that

will guide our review of this case.                         Kinsella v. Kinsella, 150

N.J. 276, 317-18 (1997).              This overarching consideration - "best

interests      of     the   child"    -    was    defined          by    our       Supreme   Court

nearly        fifty-nine        years      ago         as     a         paramount       judicial

responsibility to consider and safeguard "the safety, happiness,




                                             30                                          A-4030-12T2
physical, mental and moral welfare of the child."                            Fantony v.

Fantony, 21 N.J. 525, 536 (1956).                   The Legislature has also

adopted the "best interests of the child" standard as a matter

of public policy.         See N.J.S.A. 9:2-4.

      Determining        what    custodial      arrangement       is    in     the   best

interest of a child requires the Family Part judge to apply the

statutory factors outlined in N.J.S.A. 9:2-4, as complimented by

the   relevant     court    rules       governing    an       award    or    change    of

custody,    and    reach    a     conclusion     that     is    supported       by     the

material factual record.           "Absent exigent circumstances, changes

in    custody     should    not    be    ordered     without      a     full    plenary

hearing."       Faucett v. Vasquez, 411 N.J. Super. 108, 119 (2009),

certif. denied, 203 N.J. 435 (2010) (citing R. 5:8-6).

      Our Supreme Court has noted that, as a general proposition,

we should accord great deference to discretionary decisions made

by Family Part judges, provided they are supported by adequate,

substantial, and credible evidence in the record.                             Cesare v.

Cesare,    154    N.J.    394,    411-13   (1998).        A    proper       exercise    of

judicial        discretionary       authority        "connotes          conscientious

judgment, not arbitrary action; it takes into account the law

and the particular circumstances of the case before the court."

Higgins v. Polk, 14 N.J. 490, 493 (1954).




                                           31                                   A-4030-12T2
       Here,     our   extensive         examination             of    the       record      developed

before the Family Part over three separate hearings did not

reveal     any     instance         in        which        the        trial       judge      applied,

considered, or even mentioned any of the relevant statutory and

regulatory        standards         to        determine          whether           a      change      in

residential       custody      was       in    the     best       interest         of     this      then

fourteen-year-old boy.               The Family Part's unexplained departure

from     the    established         policies          governing          change         of    custody

applications leaves us with no other alternative but to remand

this matter for the court to consider and apply the required

procedural guidelines.

                                                 A

                                          Mediation

       With    respect    to    mediation,             Rule      5:8-1        makes     clear       that

"[i]n family actions in which the court finds that either the

custody of children or parenting time issues, or both, are a

genuine and substantial issue, the court shall refer the case to

mediation in accordance with the provisions of [Rule] 1:40-5."

(Emphasis       added).        In        order        to    provide          a    reasonable         and

meaningful opportunity for mediation to succeed, the trial court

should     confer      with     counsel          and        thereafter            enter       a     case

management order: (1) identifying the issues the mediator should

address    to     resolve      the       parties'          custodial          dispute;        and   (2)




                                                 32                                           A-4030-12T2
setting an initial two-month deadline to report back as required

under Rule 5:8-1, with the proviso that this time period can be

extended "on good cause shown."                   Ibid.     Although the parties are

not   required       to    present    expert       opinion      testimony     during    the

mediation process, they are free to agree otherwise.                            Ibid.     In

short, the court must give the parties and the mediator all

rights conferred under Rule 5:8-1.

      The case management order must also include a clear and

definitive date for ending the mediation process.                             Ibid.      The

trial judge is ultimately responsible for the progress of any

litigation.          The judge thus remains in control of the case at

all   times,     and      must   guard   against          either     party   abusing     the

mediation process by treating it as tactic to delay, frustrate,

or otherwise undermine the custodial or parenting time rights of

the adverse party.

      Given the parties' acrimonious relationship, as reflected

in the manner they have behaved throughout this litigation, it

appears    to    us       unlikely    that    mediation         will    be   successful.

However,    a        professionally      trained          mediator      is   capable      of

creating        an     environment        that        fosters         compromise        over

intransigence,         enabling      these   litigants          to    subordinate     their

emotionally-driven          personal     interests         to   the    higher   needs    of

their teenaged son to have both of his parents involved in his




                                             33                                  A-4030-12T2
life.     That being said, when the mediation process fails to

reach a timely acceptable outcome, the court needs to quickly

and decisively reassert its authority over the case.

                                              B

                                     Plenary Hearing

        The       record     we     have    described       here   in    great     detail

illustrates the parties have asserted what the judge correctly

characterized        as     "diametrically"         opposing    positions     regarding

what type of custodial arrangement would be in the best interest

of their now sixteen-year-old son.                   Plaintiff claims defendant's

home life has been and continues to be dominated by domestic

violence, which places her son in a physical danger and creates

an   emotionally         chaotic     home    environment,       rendering     defendant

utterly ill-suited to be Jeremy's residential custodial parent.

      Defendant          has      refuted     these        allegations     and     claims

plaintiff's          overly         confrontational,           needlessly        punitive

parenting style has alienated Jeremy from his mother to such an

extent that the teenager is not willing to reside with her.                             As

an   example        of     plaintiff's      alleged        inappropriate     parenting-

behavior, defendant "told" the trial judge that plaintiff has at

times used excessive corporal punishment to discipline Jeremy.

According to defendant, Jeremy's age and level of maturation has

reached       a    point     that     it    would     be    physically      futile     and




                                             34                                  A-4030-12T2
emotionally     counterproductive       to    force    him   to    live   with      his

mother by judicial decree.

       Given the parties' allegations, and to assist the trial

judge in reaching the exquisitely difficult decision concerning

what    kind   of   residential      custodial       arrangement     would     be   in

Jeremy's best interest, we strongly suggest the court consider

appointing an independent mental health professional to evaluate

the current psychological and emotional state of Jeremy and his

parents.       Rule   5:3-3(b)    provides      the    trial      judge   with      the

discretionary authority to appoint a mental health expert to

perform parenting/custody evaluations of the parties and Jeremy.

The mental health expert appointed by the court is mandated to

conduct a "strictly non-partisan" evaluation to opine what would

be in the child's best interests.                Ibid.       Such an evaluation

"should consider and include reference to criteria set forth in

N.J.S.A. 9:2-4, as well as any other information or factors they

believe pertinent to each case."             Ibid.

       We conclude our discussion of this issue by cautioning the

trial court that reports by mental health care experts may at

times   include     the   expert's    opinion    or     recommendation       to     the

court on the ultimate question of custody.                    These experts may

also believe, or outright express in their reports, that their

professional training and experience gives them unique insights




                                        35                                   A-4030-12T2
into the dynamics of troubled families, and they may urge the

court to adopt their recommendations or at least defer to their

professional judgments on the issue of custody and/or parenting

time.    Although the opinions of mental health practitioners or

of any other professionals in the various fields related to the

human psyche should be carefully considered by a judge when

appropriate, such opinions do not relieve the trial judge from

the ultimate responsibility of determining what type of custody

arrangement is in the best interest of the child.                  The burden of

making and explaining that decision remains at all times the

exclusive    obligation      of   the    trial       judge   and   can    never   be

delegated to any other party.             See Mackowski v. Mackowski, 317

N.J.    Super.     8,   13   (App.   Div.      1998)    ("Ceding    fact-finding

responsibility to another party dilutes our ability, as judges,

to decide issues based on the 'best evidence' [of the child]

available.").

                                         C

                             Interviewing Jeremy

       The record here shows that at various times during the

multiple hearings conducted by the trial judge both the parties

and attorneys made allegations, proffers, and representations

describing       Jeremy's    emotional       state    concerning    his    various

interactions with the parties and their respective spouse and/or




                                         36                                A-4030-12T2
"significant other."         The central figure in this family drama is

unquestionably this now sixteen-year-old juvenile.                 Both parties

made    glowing    representations         to    the   trial   judge   about      his

intellectual attributes, his academic prowess, and his emotional

maturity.        Unfortunately, both sides have also claimed Jeremy

has been significantly harmed while in the physical custody of

the other parent, and will be exposed to even greater harm if

forced by the court to reside with the other parent.

       In our view, the discretionary authority conferred to the

trial    judge    under    Rule    5:8-6     was   precisely    intended     to    be

exercised in cases such as this one.                   We recognize a previous

version of Rule 5:8-6 provided that "the [trial] court shall . .

. at the request of a litigant conduct an interview with the

child(ren) if the child(ren) are age 7 or older."                      Mackowski,

supra,    317    N.J.     Super.   at   11      (emphasis   added).     We     also

acknowledge that at the recommendation of the Family Practice

Committee and based, in part, on the reasoning expressed by our

colleague Judge Kestin in his concurring opinion in Mackowski,4


4
    Judge Kestin noted:

            I believe that child interviews in custody
            cases are unwise because they are harmful to
            the child, often irreparably so, with no
            significant offsetting benefit; and they
            impact in subtle and potentially destructive
            ways on parent-child relationships.   Once a
                                                       (continued)


                                        37                                 A-4030-12T2
the Supreme Court amended Rule 5:8-6, effective September 3,

2002.   The rule now reads as follows:

          Where the court finds that the custody of
          children is a genuine and substantial issue,
          the court shall set a hearing date no later
          than six months after the last responsive
          pleading.    The court may, in order to
          protect the best interests of the children,
          conduct the custody hearing in a family
          action prior to a final hearing of the
          entire family action.       As part of the
          custody hearing, the court may on its own
          motion or at the request of a litigant
          conduct an in camera interview with the
          child(ren).   In the absence of good cause,
          the decision to conduct an interview shall
          be made before trial.    If the court elects
          not to conduct an interview, it shall place
          its reasons on the record.     If the court
          elects to conduct an interview, it shall
          afford counsel the opportunity to submit
          questions for the court's use during the
          interview and shall place on the record its
          reasons for not asking any question thus
          submitted.     A stenographic or recorded
          record shall be made of each interview in
          its entirety.   Transcripts thereof shall be
          provided to counsel and the parties upon
          request and payment for the cost.   However,


(continued)
          judge,   as  decision   maker,   conducts an
          interview with a child when the pending
          question is custody, nothing the judge or
          any other person can say or do will ever
          convince the child that he or she is not
          responsible for the ultimate decision that
          is made. This is a burden no child, of any
          age, should ever carry; it is one that may
          weigh heavily for years to come.

          [Mackowski, supra, 317 N.J.    Super.   at   15
          (Kestin, J., concurring).]



                                38                          A-4030-12T2
           neither parent shall discuss nor reveal the
           contents of the interview with the children
           or third parties without permission of the
           court.    Counsel shall have the right to
           provide the transcript or its contents to
           any expert retained on the issue of custody.
           Any judgment or order pursuant to this
           hearing shall be treated as a final judgment
           or order for custody.

           [Rule 5:8-6 (emphasis added).]

     By replacing the word "shall" in the pre-2002 version of

the Rule with the word "may," the Supreme Court made clear that

the decision whether to interview a child in a contested custody

case is left to the sound discretion of the trial judge, which,

as in all matters affecting children, must be guided by the best

interest of the child.      The Rule also provides that "in the

absence of good cause," the trial judge should decide whether to

interview the child before the start of the trial.5        Ibid.

     Of   particular   relevance   here,   Rule   5:8-6   also   contains

equally clear, non-discretionary mandates:

           If the court elects not to conduct an
           interview, it shall place its reasons on the
           record. If the court elects to conduct an
           interview, it shall afford counsel the
           opportunity to submit questions for the
           court's use during the interview and shall


5
  Although Rule 5:8-6 uses the word "trial," we discern no
rational basis for not applying the Rule to an evidentiary
hearing in cases such as this one, where the parties are
contesting the custody of their child in a non-matrimonial
dissolution setting.



                                   39                            A-4030-12T2
           place on the record its reasons               for    not
           asking any question thus submitted.

           [(Emphasis added).]

      Without belaboring the point, the record developed before

the trial court shows no effort by the trial judge to comply

with these requirements.         Although the Rule also directs that a

certain protocol be followed if the judge decides to interview

the   child,    these   issues    are   not   relevant   here    because     the

judge's ambivalence about whether to interview Jeremy left us

without a reviewable record on the vital threshold issues.

      In the interest of providing the Family Part with some

guidance on how to address the difficult discretionary decision

of whether to interview a child, we suggest our colleague at the

trial   level    consider   the    following    words    written      by   Judge

Carchman in Mackowski over sixteen years ago:

           We appreciate the concern expressed by the
           judge that by compelling [this sixteen-year-
           old girl] to submit to an interview, the
           judge was compromising her loyalty to both
           parents by requiring her to "choose between
           the two."     While such a view may have
           surface allure, in reality, it is both too
           narrow and, ultimately, unfair to the child.
           In making a determination as to an award of
           custody, or in this case a change in
           custody, a judge is charged with considering
           the factors set forth in N.J.S.A. 9:2-4,
           including an assessment of "the preference
           of the child when of sufficient age and
           capacity to reason so as to form an
           intelligent    decision."       The    proper
           assessment   of    a   child's   ability   to



                                        40                             A-4030-12T2
         participate in the decision-making process,
         a right protected by statute, cannot be
         performed   by  a   simple  reading  of   an
         affidavit or letter from the child.    We do
         not countenance such decision-making where
         there are contested issues requiring a
         plenary hearing, and we cannot accept the
         denial of a hearing premised on a notion or
         hope that such denial is protecting the
         child.   The child has a right to be heard
         and voice an opinion to the finder of fact
         and ultimate decision-maker. The court need
         not be bound by the child's view but that
         cannot be a basis for denying the child the
         right to express a view if he or she chooses
         to do so.

         We recognize that some judges prefer not to
         be involved in a process which can be
         uncomfortable for both the judge and the
         child. That, however, provides no justifica-
         tion for abrogating the responsibility to
         perform a function mandated by our rules[6] of
         court and necessary to fulfill a statutory
         duty.    The concern that judges are ill-
         equipped to conduct such interviews speaks
         to the need for enhanced judicial training.
         A carefully conceived and conducted interview
         can produce facts, including, among other
         things,    information    about    interests,
         activities with parents, living arrangements
         and friends, that may be dispositive and at
         no time require that the child be confronted
         with the ultimate question requiring that an
         election between parents be made.    We agree
         that no child should be asked to select
         between two opposing parents, and R. 5:8-6
         does not speak in such stark terms. In this
         case, [the child] was sixteen years old,
         less than two years from majority.         She
         filed a letter with the court expressing her

6
  Obviously, the September 2002 amendment to the Rule no longer
makes this mandatory. We nevertheless strongly subscribe to the
wisdom permeating Judge Carchman's words.



                              41                          A-4030-12T2
            preference for living with her father.  An
            interview was necessary to allow the judge
            to carefully test the bona fides of [the
            child]'s alleged choice.

            [Mackowski, supra, 317 N.J. Super. at 12-13
            (emphasis added) (footnotes omitted).]

    As we noted earlier, the amendment to Rule 5:8-6 making the

decision to interview a child in a custody dispute discretionary

by the judge came to past in part by recommendations made by the

Family Practice Committee.          Pressler & Verniero, Current N.J.

Court Rules, comments on R. 5:8-6 (2015).                 The report of the

Family Practice Committee included the recommendations of the

Custody and Parenting Time Subcommittee that formed, at least in

part, the basis for amendments to Rule 5:8-6 adopted by the

Supreme Court in 2002.       The Subcommittee's report emphasized and

contrasted   the    Rule's   then   inflexible    command    for   the   trial

judge to interview a child who was at least seven years old,

with the more balanced and sensitive approach endorsed by the

Legislature in N.J.S.A. 9:2-4.

    This criticism of the Rule's inflexibility before the 2002

amendment    was    well-founded.      By   contrast,      the   preamble   to

N.J.S.A.    9:2-4   describes   the   public     policy    underpinning     its

requirements and strikes the proper balance to guide the court

in its implementation:




                                      42                             A-4030-12T2
          The Legislature finds and declares that it
          is in the public policy of this State to
          assure   minor  children   of   frequent and
          continuing contact with both parents after
          the parents have separated or dissolved
          their marriage and that it is in the public
          interest to encourage parents to share the
          rights and responsibilities of child rearing
          in order to effect this policy.

Towards that end, N.J.S.A. 9:2-4(c) provides:

          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.

          [(Emphasis added).]

    This statute identifies the key elements the Family Part

Judge   must   address   when   confronted   with   the    awesome



                                43                         A-4030-12T2
responsibility of deciding who should have custody of the child.

The     Supreme       Court    has   made        clear     that   "in     all    custody

determinations, the preference of the children of 'sufficient

age and capacity' must be accorded 'due weight.'"                       Beck v. Beck,

86 N.J. 480, 501 (1981).             Given Jeremy's age, alleged emotional

maturity, and level of intelligence, the trial judge here was

clearly required to take into consideration Jeremy's feelings

and desires concerning where and with whom he should live.                              At

the very least, Rule 5:8-6 required the judge to place on the

record his reasons for not interviewing this fourteen-year-old

boy.        Peregoy v. Peregoy, 358 N.J. Super. 179, 206 (App. Div.

2003).

        If the judge elects to interview Jeremy, (as the prevailing

circumstances         here    strongly    indicate        he   should),    Rule     5:8-6

mandates the court to: (1) conduct an interview with the child

in     camera7;   (2)     "afford    counsel        the    opportunity      to    submit

questions for the court's use during the interview"; (2) "place

on    the    record    its    reasons    for     not     asking   any   question     thus

submitted"; (3) create and preserve a stenographic or recorded


7
  "The interview occurs in camera because the child is entitled
to a degree of privacy which preserves, so far as possible, the
child's 'freedom of expression.'"    Uherek v. Sathe, 391 N.J.
Super. 164, 168 (App. Div.), certif. denied, 192 N.J. 72 (2007)
(quoting Lavene v. Lavene, 148 N.J. Super. 267, 272 (App. Div.
1977)).



                                            44                                   A-4030-12T2
audio record of each interview in its entirety; and (4) provide

transcripts of the interview(s) to counsel and the parties 8 upon

request and payment for the cost.           Ibid.

    The court should also ensure and make clear that "neither

parent" is permitted "to discuss nor reveal the contents of the

interview with the children or third parties without permission

of the court."         Ibid.     We recommend the court enter a case

management     order   to   memorialize     this    particularly     important

aspect of the interview process.               This order must make clear

that any violation of this confidentiality provision may expose

the responsible individual to sanctions pursuant to either a

motion to enforce litigant's rights brought by a party under

Rule 1:10-3, or Summary Contempt Proceedings initiated by an

Order to Show Cause under Rule 1:10-2.

    We   sympathize      with    the   trial    judge's    consternation    and

share his concern for the emotional trauma Jeremy may experience

during   the   interview       process.     N.J.S.A.      9:2-4(c)   does   not

require the judge to ask a child to select between two opposing


8
  We emphasize, however, that the mandate in Rule 5:8-6 to
provide transcripts of the court's interview with a child to
counsel and the parties applies only to an actively pending
contested custody case. In the interest of clarity, we reaffirm
our holding in Uherek, supra, that "absent that circumstance,"
there is no legal basis for the turnover of the child's private
communications with the court, not "even to a parent."   Id. at
169.



                                       45                             A-4030-12T2
parents.   The statute only requires the judge to consider the

child's "preference," when he or she is "of sufficient age and

capacity to reason so as to form an intelligent decision[.]"     In

going about this exquisitely delicate task, we strongly suggest

trial judges to keep in mind Judge Carchman's wise observations

in Mackowski:

           Too often, judges deciding issues in the
           Family Part must rely solely on the "voices"
           of the attorneys who prepare the competing
           affidavits    and   certifications   on  the
           pretense that the litigant is speaking.
           [The judge's interview] insures that where
           custody is a "genuine and substantial"
           issue, the judge will not be insulated from
           seeing and hearing the subject of the
           dispute.    The "voice" seen and heard will
           not be that of the lawyer or litigant but
           that of the child who is the subject of the
           dispute.   The value of a properly conducted
           interview enabling the judge to see and hear
           the    child    first-hand    outweighs  the
           possibility of harm that may befall a child
           by being subjected to the interview process.
           On balance, it is not the interview that is
           ultimately harmful, but the custody dispute
           between the parties that potentially wreaks
           havoc with the child.

           [Mackowski, supra, 317 N.J. Super. at 14].

     The Supreme Court has recognized that Family Part judges

have developed a special expertise in dealing with family and

family-type matters. Cesare, supra, 154 N.J. at 412-13.   We have

complete confidence that this judge, indeed all of the judges

assigned to the Family Part, will strive to conduct the difficult




                                46                        A-4030-12T2
task of interviewing children in contested custody cases with

dignity, compassion, and great sensitivity to the extraordinary

circumstances that have brought this child before the court.

                                         VII

                                      Conclusion

      The record shows the trial judge was unaware that under

Rule 5:8-1 he was obligated to refer this case to mediation

because Jeremy's custody and parenting time were genuine and

substantial issues in dispute.                 We are therefore compelled to

remand this case for the parties to submit to mediation.                                  The

record    also      reveals    that    the     parties     have    been       heretofore

utterly unwilling to subordinate their antipathy for each other

and   reach     a   compromise    position        that   would     be    in       the    best

interest of their now sixteen-year-old son.

      We thus strongly suggest the trial court closely monitor

the   mediation      process     by    way   of    periodic       reports         from   the

mediator.        Unless the court is           satisfied that the mediation

process    is    producing     meaningful      and   measurable         progress,        the

court     should     reassert    jurisdiction        and    schedule          a    plenary

hearing forthwith.        On this point, we are compelled to note that

the informality that permeated all of the court's interactions

with the parties and their respective attorneys here were not

only unproductive, but ultimately undermined the solemnity and




                                          47                                       A-4030-12T2
decorum   necessary    for   effective          courtroom    management.        We

reaffirm the standard we articulated twelve years ago:

          Trial judges are given wide discretion in
          exercising control over their courtrooms.
          However, the trial judge has the ultimate
          responsibility of conducting adjudicative
          proceedings in a manner that complies with
          required formality in the taking of evidence
          and the rendering of findings.

               . . . .

          [F]actual findings must be supported by
          evidence admitted during the hearing, which
          shall   be  held   on   the  record.     All
          documentary exhibits considered by the court
          must be clearly identified for appellate
          review. R. 1:2-3. Testimonial evidence must
          be presented through witnesses who are under
          oath, N.J.R.E. 603, and subject to cross-
          examination. N.J.R.E. 611.

          [N.J. Div. of Youth & Family Servs. v. J.Y.,
          352 N.J. Super. 245, 264-65 (App. Div. 2002)
          (internal citations omitted).]

    Here, the parties' dramatically different and conflicting

factual   accounts    need   to     be        carefully   scrutinized   by    the

professionally trained eyes of an experienced Family Part Judge,

but only after both parties have been subjected to aggressive

cross-examination,    the    best    tool        we   know   for   clearing    up

obscurity, minimizing hyperbole, and revealing truth.

    Reversed and remanded.        We do not retain jurisdiction.




                                         48                             A-4030-12T2
