R.K. VS. J.L. (FD-15-0010-17, OCEAN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0841-18T1
R.K.,
Plaintiff-Respondent,
v.
J.L.,
Defendant-Appellant.
__________________________
Submitted October 21, 2020 – Decided January 14, 2021
Before Judges Geiger and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County, Docket
No. FD-15-0010-17.
J.L., appellant pro se.
Paras, Apy & Reiss, PC, attorney for respondent (Peter
C. Paras, of counsel and on the brief).
PER CURIAM
In this custody dispute, defendant J.L.1, who is self-represented, appeals
from an October 1, 2018 order denying her full custody of the parties' minor son
and his removal to Connecticut. We affirm, substantially for the reasons set
forth in Judge Deborah L. Gramiccioni's thoughtful and thorough forty-three-
page written opinion. We add only the following brief comments.
When parties met in 2002, defendant was living in Connecticut, and
plaintiff resided in New Jersey. After four months they discontinued their long-
distance relationship but resumed in 2009. In 2011, the parties' son, A.K., was
born. A.K. lived with defendant in Connecticut until October 2014, when
defendant, A.K., and defendant’s daughter moved to New Jersey to live with
plaintiff. The parties lived together or near each other from October 2014 to
January 2018. A.K. started to attend school, play sports, and develop
relationships with friends and family. Defendant currently resides and works in
New Jersey. The parties' relationship eventually dissolved.
On July 6, 2016, plaintiff filed a complaint for joint legal and physical
custody of A.K., a parenting time schedule, right of first refusal, and counsel
fees. Defendant filed a counterclaim on July 27, 2016, requesting sole physical
1
We use initials to maintain the confidentiality of the parties and their child.
R. 1:38-3(d)(12).
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2
custody, parenting time, and relocation to Connecticut. In the summer of 2016,
the parties agreed on a 50/50 parenting schedule. Plaintiff changed his work
schedule to make his son a priority. On alternate weekends, A.K. and defendant
traveled to Connecticut, where he was able to visit his maternal family and half-
sister. However, defendant would not let A.K. speak to plaintiff by phone while
in her care.
On September 7, 2016, another judge granted joint legal and residential
custody of A.K. to the parties; the order also included a parenting time
arrangement that was agreed upon by the parties. The judge denied defendant's
request for removal and relocation and denied plaintiff's application for counsel
fees without prejudice.
On January 12, 2017, defendant filed an Order to Show Cause requesting
relocation, custody, and parenting time. That same day, Judge Gramiccioni
entered an order denying defendant’s request, and scheduled the matter to be
heard as a motion on short notice on January 25, 2017. On January 17, 2017,
plaintiff filed a cross-motion seeking to deny relocation, custody, and schedule
the matter for trial. On January 19, 2017, defendant filed a response to
plaintiff’s cross-motion. On January 25, 2018, Judge Gramiccioni denied
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defendant’s motion on short notice and determined that these issues required
resolution at a plenary trial, which commenced on March 15, 2018.
At trial, plaintiff's witness, Dr. Mitch Abrams, was the only expert to
testify. After conducting clinical interviews, psychological testing, document
review, and interviews with collateral sources, Dr. Abrams concluded it would
be in the child's best interests if A.K. had consistent, regular contact with both
parents. Dr. Abrams recommended the parties share joint legal and residential
custody, opining it would be against A.K.'s best interests if he relocated to
Connecticut. Although she was a loving, caring, and attentive mother, Dr.
Abrams opined that defendant tended to distort the truth. Dr. Abrams was
particularly troubled by a statement she made to him that plaintiff should not be
involved in A.K.'s life in any capacity. Despite this, Dr. Abrams concluded her
regular presence in A.K.'s life is key to his development.
In contrast, Dr. Abrams found plaintiff to be emotionally stable and more
reliable than defendant. In addition, Dr. Abrams determined A.K. and his father
had a normal and stable relationship. Dr. Abrams recommended, in addition to
joint custody, that the parties attend co-parenting classes together to improve
their communication and assure each other of their willingness to place their
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son's interests above their own. Dr. Abrams also recommended defendant be
evaluated by a psychotherapist and attend psychotherapy immediately.
Judge Gramiccioni determined Dr. Abrams "exhibited a direct,
professional and straightforward demeanor" and "acknowledged the relative
strengths and weaknesses of both parents." In evaluating the case, the judge
relied heavily upon Dr. Abram's testimony.
Other witnesses testified at trial, including defendant's adult daughter,
friends, and a neighbor. Judge Gramiccioni found them all credible. She
described plaintiff's testimony as "straightforward, forthright, and direct." In
contrast, she found defendant "appeared motivated to gain an advantage in the
instant custody litigation by exaggerating facts or exploiting certain incidents
involving [p]laintiff, which were revealed to be more innocuous than
[d]efendant had asserted." Judge Gramiccioni found defendant's former
accusations against plaintiff to be unsubstantial, unfounded, "self -serving and
baseless, and designed to gain an advantage in the custody proceedings that were
pending at the time."
Judge Gramiccioni applied the factors enumerated in N.J.S.A. 9:2-4 and
concluded it would be in A.K.'s best interest if the parties shared joint physical
and legal custody, with equal shared parenting time. The judge found that "both
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parties are able to function as joint custodians of A.K., and are capable of
cooperating with each other for the benefit of their son." The judge also
determined that both parents "appear willing, indeed eager, to accept custody of
A.K." and that "neither parent has improperly withheld the child from the other
and is unlikely to do so in the future." The judge also noted that "the interactions
and relationships A.K. currently maintains with both [p]laintiff and [d]efendant
promotes stability, contributes to his well-being, and is in his best interest." The
judge stated, "that both parents have commensurate abilities to satisfy the needs
of A.K.." The judge found that A.K. was "well-adjusted" and "happy and settled
in his current school environment." The judge determined that neither party was
unfit to parent and the psychological testing did not disqualify either. The judge
noted that both parties spent considerable time with A.K. which underscored
"the importance of shared physical custody of A.K., who clearly enjoys the time
spent with both parents."
Ultimately, Judge Gramiccioni concluded that:
A.K. has flourished under the current equal parenting
time arrangements, notwithstanding the palpable
friction the parties exhibited in the throes of litigation.
He enjoys his school and extra-curricular activities, and
spends quality and meaningful time with both
[p]laintiff and [d]efendant. The child's best interests are
served by the parents sharing legal and residential
custody and having equal parenting time.
A-0841-18T1
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On the issue of removal, Judge Gramiccioni applied Bisbing v. Bisbing,
230 N.J. 309 (2017), and determined it would be in A.K.'s best interests to
remain in New Jersey. The judge noted that, although defendant "set forth
reasons why the move would be better for her," no testimony was presented "as
to why the move would be better for A.K.."
Judge Gramiccioni found, based on Dr. Abrams' testimony, that "anything
that would interfere with steady interactions with both parents would not be in
A.K.’s best interest." The judge stated defendant's proposed parenting schedule
"would pose hardships on the parties, insofar as the proposal would require
multiple hour-long car trips to exchange A.K. every week during the school year
. . . . For a six[-]year[-]old child, [d]efendant's proposed parenting schedule
would be difficult, and more importantly, unnecessary."
In weighing the factors set forth in N.J.S.A. 9:2-4, Judge Gramiccioni
concluded:
The meaningful interaction and relationship of A.K.
with both parents, the stability of the home
environment, the quality and continuity of A.K.'s
education, the extent and quality of the time spent with
A.K. prior to or subsequent to the separation, and even
the parents’ employment responsibilities, all weigh in
favor of denying [d]efendant’s request.
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Judge Gramiccioni, again evaluating the factors set forth in N.J.S.A. 9:2-
4, determined that "A.K.’s best interests would be served by awarding the parties
equal parenting time." The judge found the current schedule, which had been
followed for almost two years, should continue. 2
On appeal, defendant raises two points for our consideration:
POINT I
THE TRIAL COURT INAPPROPRIATELY DENIED
THE APPLICATION FOR RELOCATION TO
CONNECTICUT.
POINT II
THE TRIAL COURT INAPPROPRIATELY
AWARDED JOINT CUSTODY BETWEEN THE
PARTIES AS OPPOSED TO AWARDING SOLE
PHYSICAL AND LEGAL CUSTODY TO
DEFENDANT/APPELLANT.
"Appellate courts accord particular deference to the Family Part because
of its 'special jurisdiction and expertise' in family matters." Harte v. Hand, 433
N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare v. Cesare, 154 N.J. 394,
413 (1998)). "Because a trial court 'hears the case, sees and observes the
witnesses, [and] hears them testify,' it has a better perspective than a reviewing
court in evaluating the veracity of witnesses.'" Cesare, 154 N.J. at 412 (quoting
2
The parties shared "a bi-weekly 3-2-2 cycle."
A-0841-18T1
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Pascale v. Pascale, 113 N.J. 20, 33 (1988)). As such, "an appellate court should
not disturb the 'factual findings and legal conclusions of the trial judge unless
[it is] convinced that they are so manifestly unsupported by or inconsistent with
the competent, relevant and reasonably credible evidence as to offend the
interests of justice.'" Ibid. (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co.,
65 N.J. 474, 484 (1974)). "[W]e owe no deference to the judge's decision on an
issue of law or the legal consequences that flow from established facts." Dever
v. Howell, 456 N.J. Super. 300, 309 (App. Div. 2018) (citing Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
Our legislature has determined 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.
[N.J.S.A. 9:2-4.]
"[I]n promoting the child's welfare, the court should strain every effort to
attain for the child the affection of both parents rather than one." Beck v. Beck,
86 N.J. 480, 485 (1981) (quoting Turney v. Nooney, 5 N.J. Super. 392, 397
(App. Div. 1949)). A custody decision "must foster, not hamper," a "healthy
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parent-child relationship" with both parents. Nufrio v. Nufrio, 341 N.J. Super.
548, 550 (App. Div. 2001). A parent's enumerated rights on custodial matters
are qualified, however, by the multiple factors set forth in N.J.S.A. 9:2-4, which
require courts to evaluate the child's best interests. See Faucet v. Vasquez, 411
N.J. Super. 108, 118 (App. Div. 2009) (stating "the touchstone" of all custody
cases is the child's best interests).
Applying our deferential standard to the family court's findings, and after
conducting our de novo review of its legal conclusions, we affirm Judge
Gramiccioni's order establishing joint legal and residential custody. We
conclude the judge thoroughly considered all the statutory factors and explained
the factual findings, which were supported by "adequate, substantial and
credible evidence" in the record. Rova Farms, 65 N.J. at 484. Contrary to
defendant's assertions, there was nothing in the record to indicate that the
arrangement was contrary to A.K.'s best interests. The judge conducted an
extensive evaluation of the applicable factors set forth in N.J.S.A. 9:2-4,
recognizing the discord between the parties but still concluding that it was in the
A.K.'s best interests to have equal time with both parents.
In that regard, we also are satisfied that Judge Gramiccioni's denial of
A.K.'s removal was equally supported by the record and in the child's best
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interests. In Bisbing, our Supreme Court departed from the two-part removal
test in Baures v. Lewis, 167 N.J. 91, 118-20 (2001), and replaced it with the
best-interests standard embodied in N.J.S.A. 9:2-4. 230 N.J. at 312-13. Under
N.J.S.A. 9:2-2, a parent who seeks to remove a child from New Jersey without
the other parent's consent must demonstrate "cause" for the removal, which is
"determined by a best interests analysis in which the court will consider all
relevant factors set forth in N.J.S.A. 9:2-4(c), supplemented by other facts as
appropriate." Bisbing, 230 N.J. at 338. The judge's decision denying removal
was supported by the substantial, credible evidence in the record, and we discern
no basis to disturb it.
Affirmed.
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