K.K. v. L.K. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-3046-23
K.K.1,
Plaintiff-Appellant,
v.
L.K.,
Defendant-Respondent.
_________________________
Argued November 7, 2024 – Decided November 18, 2024
Before Judges Mawla and Natali.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-1631-21.
Matteu D. Nunn argued the cause for appellant
(Einhorn, Barbarito, Frost & Botwinick, PC, attorneys;
Matheu D. Nunn and Jessie M. Mills, on the briefs).
Stephanie O'Neill argued the cause for respondent
(Garcia Law, LLC, attorneys; Stephanie O'Neill, on the
brief).
1
We use initials pursuant to Rule 1:38-3(a)(1).
PER CURIAM
Plaintiff K.K. appeals from an April 24, 2024 final judgment of divorce,
which granted defendant L.K. primary residential custody of the parties' children
and permitted them to remain in California. We affirm.
The parties were married in 2017. Two children were born during the
marriage. They were three and five years old when the court tried this matter.
The older child was born in California, and the younger one was born in New
Jersey. The parties resided together in New Jersey during the marriage but
experienced several separations and reconciliations, which caused them to live
apart, with defendant and the children often returning to live with her family in
California.
In January 2021, the parties took a family vacation to California to visit
defendant's family. Near the end of their stay, defendant decided to remain in
California with the children. Plaintiff had to return to New Jersey early to
operate his business. This was not unusual because on prior occasions plaintiff
often had to leave before defendant to return to New Jersey for work purposes.
On this occasion, after plaintiff left for New Jersey, defendant sent him an online
real estate listing for a house in New Jersey, stating "[l]et's buy it [p]leaseeeee."
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In February 2021, plaintiff asked defendant when she and the children
were returning to New Jersey. She informed him they were not coming back
and blocked his telephone number, causing plaintiff to contact her via Facebook
Messenger. On February 3, 2021, defendant wrote to plaintiff, "we have to end
our marriage life and stay good friends for our kids . . . ." Plaintiff responded
that he did not want the children to remain in California and they should return
to New Jersey.
On February 10, 2021, plaintiff filed a complaint for divorce. Shortly
after the filing, he began a new relationship with a girlfriend. Plaintiff resided
with his girlfriend pendente lite. They had two children who were born during
the divorce proceedings.
On June 23, 2021, the trial court entered a case management order
memorializing that defendant was in California with the children, and the parties
would resolve matters by either entering a parenting time plan or through an
"order to show cause (OTSC) to be filed to return the children." Throughout the
remainder of 2021, the record reflects the parties attended an early settlement
panel and were engaged in attempts to settle the divorce, including exchanging
settlement proposals and a draft marital settlement agreement.
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On February 3, 2022, following an intensive settlement conference, the
court entered an order referring the parties to parenting time mediation. The
order provided that if the mediation was unsuccessful, the court would conduct
a best interests hearing. On February 23, 2022, the trial court, sua sponte,
ordered defendant "to return the children to New Jersey immediately . . . ." Both
parties were ordered to appear in court for a case management conference on
April 13, 2022.
On March 23, 2022, defendant filed an OTSC to stay the February 23
order; she sought to remain in California with the children pending the divorce
and requested a best interests evaluation. The court granted the OTSC
conditioned on defendant retaining an expert by April 13, 2022, to conduct a
best interests evaluation. The order also scheduled a case management
conference for April 13 and memorialized that the court would address whether
the stay should be vacated at the conference.
On April 13, the trial court scheduled an intensive settlement conference
(ISC) and ordered the parties to retain experts by May 3, 2022. The court
granted plaintiff pendente lite parenting time. It case managed the matter at the
May ISC and during June, August, September, and November 2022, as the
parties' custody experts were conducting their evaluations. The experts' reports
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were completed by December 2022 and the court scheduled trial. The initial
February 2023 trial date was adjourned to March 2023, and adjourned again
until September 2023.
On March 7, 2023, plaintiff filed a motion for return of the children to
New Jersey pending the divorce. Defendant opposed the motion. On April 27,
2023, the trial court denied plaintiff's application and instead granted him
summer parenting time in New Jersey. The court's order noted that, if trial did
not commence by September 15, 2023, plaintiff would be permitted to renew his
application, so long as he submitted proof that he has identified a single-family
home in New Jersey for defendant and the children to live in. The court required
plaintiff to provide proof he either paid one year's rent in advance for a home
for defendant and the children or placed an amount equal to a year's rent in his
attorney's trust account. The order stated: "No bias, prejudice, or inferences
shall be made due to the children having been temporarily relocated to
California."
In late March 2023, plaintiff reported allegations of "basic childcare
concerns on behalf of the children" to the Division of Child Protection and
Permanency (Division). He claimed the children had to remain in New Jersey
pending the investigation, however, the Division advised defendant's counsel
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this was untrue. The Division turned the case over to its California counterpart.
The record does not indicate what came of the investigation.
On May 11, 2023, the trial court entered an order with similar provisions
as the April order. The May order indicated counsel could inquire with the court
by September 1, 2023, whether the trial would commence on September 15,
2023. On August 17, 2023, the court entered a case management order, noting
alimony and equitable distribution were not trial issues. The order reflected that
plaintiff had filed a motion for the children's return in July 2023, which he
withdrew without prejudice, pending the outcome of the hearing scheduled to
begin on September 18, 2023.
The matter was tried over five days, culminating in the trial judge
rendering a detailed oral opinion on April 24, 2024. The primary issues were:
custody and parenting time; defendant's request to permanently remove the
children to California; child support; and counsel fees. Both parties and their
custody experts testified. The judge found all the witnesses credible.
Plaintiff's expert described the parties' marriage as tumultuous and
"characterized by repeated conflicts, family pressures, and interpersonal
incompatibilities." Although he found defendant "would have a harder time
living in New Jersey without the support of her family . . . in California[]," he
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nonetheless opined the children should be returned to New Jersey and the parties
should share fifty-fifty custody. He testified the children need both parents and
defendant's removal of the children was "irresponsibl[e,]" because it potentially
harmed them by separating them from plaintiff.
Plaintiff's expert opined the distance between the parties made it
impossible for plaintiff to see the children on a regular basis, but he conceded
plaintiff "has been using Facetime daily to interact with the children and has
visited the children in California." Defendant "did not appear . . . unwilling to
allow parenting time, as long as it occurred in California." However, defendant
"did not really understand the importance of the present co-parenting situation,
including the implications [of] separating the father from the children . . . ." The
fact plaintiff had other children with his girlfriend did not affect the expert's
findings because the girlfriend "would be a perfectly good parenting figure[,]"
and he had "no reason to believe that more kids would make her less of a
competent parent."
Plaintiff testified he never consented to the children remaining in
California and defendant kept them there against his will. She did not co-parent
and withheld information regarding the children's medical treatment from him.
He could create a more stable home life for the children in New Jersey because
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they would: reside with him, his girlfriend, and their children; have close
contact with the paternal grandparents; and access to good schools and dance
classes. He would help defendant with housing. His work schedule offered him
greater flexibility to be with the children whereas defendant had to leave the
children with her parents while she worked. Plaintiff could not move to
California because there were tax advantages to maintaining his business in New
Jersey. He could not operate remotely because his contacts were in the
metropolitan area, and his warehouse was in New Jersey.
Defendant's expert opined the children should be permitted to remain in
California because they have "established a life in California with school,
activities[,] and friends, and a move to New Jersey would be disruptive." He
noted the children spent most of their lives in California and are "California
kids." They were "used to living in California [and] . . . they just went back
home and didn't remain in New Jersey." And "[u]prooting the children from
their home in California would be stressful for them and disruptive to their daily
living routine."
The expert noted that "for a good portion of their relationship [the parties]
lived with [defendant's] parents in California." After marrying, they resided in
California with defendant's parents for more than a year. "There were times
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when [defendant] stayed in California with the children and stayed with her
family while [plaintiff] returned to New Jersey during the marriage." Even after
coming to New Jersey "there was a back-and-forth period of time with each of
the parents. But predominantly they spent more time in California than in New
Jersey."
The defense expert also testified defendant has been the children's primary
caregiver; she tended to the children's changing, feeding, and medical needs.
For example, defendant "saw to it that . . . [the older child] got speech therapy
for about six months. And [plaintiff] wasn't really involved. He didn't even
have a conference with the speech therapist or check up on the progress. He
was spending most of his time involved with his own work schedule . . . ."
The expert noted plaintiff was preoccupied with a "persistent concern
about losing his kids and waging war with [defendant, which was] a major
obstacle to effective and cooperative co-parenting." On the other hand, like
plaintiff's expert, the defense expert noted defendant did "not impede[] access
to the children . . . ." The expert opined plaintiff needed to focus more on the
children's happiness and "moderating his emotions" so that he could co-parent
with defendant.
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Defendant testified she did not consider New Jersey her home and did not
plan to permanently reside in the state. She did not have a New Jersey driver's
license or any friends or family in the state, save for a cousin. The children had
resided in California since January 2021 and removing them would harm them
because they had a stable home life there. The children had many friends and
were happy in California. The older child had been enrolled in gymnastics for
several years and would have to withdraw and re-enroll in her extracurricular
activities and school, which would be disruptive.
Defendant testified she was the children's primary caregiver since their
births. She was responsible for their daily care, including when they were sick.
She had steady employment in California, no job prospects in New Jersey, and
could not afford to live in New Jersey. She testified plaintiff worked long hours,
even when he had the children. In one instance, he took them to his warehouse
to keep working, which was unsafe.
The trial judge awarded the parties joint legal custody, noting neither party
opposed sharing legal custody. She then addressed physical custody by
assessing the evidence and each of the fourteen N.J.S.A. 9:2-4(c) factors.
The judge found the parties were unable to agree and communicate on
matters involving the children, and the parental conflict would not improve
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based on the children's residence. Therefore, the first best interests factor
favored designating defendant as the parent of primary residence. The judge
appointed a parenting coordinator to facilitate the parties' communication.
The judge found the second best interests factor favored neither party
because "[b]oth are willing to accept custody of the children [and t]here have
been no . . . substantiated findings of abuse or neglect." Factor three favored
defendant because even though the children had a positive relationship with each
parent, plaintiff and his girlfriend had a two year old and five month old,
whereas in California they were "the only children in the household . . . ." The
children needed "to adjust in spending time with [plaintiff] as well as their
siblings."
The fourth best interests factor was not applicable. Although both parties
alleged there was domestic violence between them, the judge found "none of the
purported acts . . . were ever substantiated." Likewise factor five was
inapplicable because there was no evidence that a custody award should be made
to ensure the safety of a child or party from physical abuse by the other parent.
Best interests factor six was inapplicable because the judge found neither child
was "of sufficient age to form an intelligent decision" regarding their preference
for custody.
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As for factor seven, the parties did not present "substantial evidence"
regarding the children's needs. However, the judge noted plaintiff placed his
interest in seeing the children over their happiness, and defendant did not fully
appreciate how the separation impacted the children. Notwithstanding these
deficits, the judge pointed to the fact that during the marriage, defendant was
the primary caregiver, and currently meets the children's day-to-day needs,
including when they are sick. Therefore, this factor favored defendant.
Best interests factor eight weighed in favor of defendant. Both parents
could provide a stable home environment. They both cared for the children and
had extended family with whom the children had relationships. Although
plaintiff enjoyed financial stability, the children were "still adjusting to hav[ing]
siblings . . . ." Conversely, although defendant could not independently provide
the children with a home and relied on her parents for support, there were no
other children living in her home. Her job gave her flexibility while also
allowing her to care for the children.
The judge concluded that designating defendant the parent of primary
residence and allowing her to remain in California would continue the role she
had during the marriage and allow the children to maintain their activities,
friendships, medical care, and education. Under these circumstances, the judge
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concluded removing defendant as the parent of primary residence was not in the
children's best interests and requiring her to return to New Jersey was not a
viable option.
As for best interests factor nine, the judge noted the younger child was not
yet in elementary school and the older child was in kindergarten. Therefore, the
children's education was neither diminished nor improved by permitting them to
remain in California. "However, reducing any stress which could be caused by
having to adjust to a new environment would be in the best interest [s] of the
children." The judge explained the older child was "in the early stages of her
education, she has started to interact with other children and . . . if she were to
return to . . . New Jersey it could cause stress and would . . . force her to adjust
to a[] new environment." Therefore, this factor favored defendant.
The judge found factor ten inapplicable because neither expert questioned
the parties' fitness. Factor eleven favored defendant. Despite the distance
between the parties, "with daily telephone contact and video contact with the
children, concentrated parenting time during the summer, long weekends and
school breaks and the use of a parent coordinator the parties will learn to co -
parent effectively, and [plaintiff] will maintain a strong relationship with the
children."
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Best interests factor twelve also favored defendant because she was the
primary caregiver. Defendant "was highly involved and cared for the children.
[Plaintiff] worked outside the home. There were times when [defendant] stayed
in California with the children and stayed with her family while [plaintiff]
returned to New Jersey during the marriage." The evidence showed that "[a]s
the parties traveled back and forth between New Jersey and California the
children followed [defendant] during the marriage and after separation in
January of 2021." Although defendant and the children lived in California "over
[plaintiff's] objection. The court permitted [her] to remain [in] California
pending trial. This arrangement allowed [defendant] to have more time,
however [plaintiff] also exercised parenting time for extended periods of time
in New Jersey."
Factor thirteen favored defendant because plaintiff could not run his
business remotely whereas defendant worked "part time during school hours."
Although both parties had support at home, plaintiff's girlfriend "also has to care
for two . . . very young children of her own." Defendant had the support of her
parents and "if [she] were to live in New Jersey[,] she would not have the benefit
of her family members to assist her if she needs backup. As a primary care giver
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[sic] . . . of the children the proximity to [defendant's] support system is
important . . . ."
The number of children and their ages did not favor either party.
Therefore, best interests factor fourteen was not relevant.
The trial judge concluded it was in the children's best interests to permit
defendant to permanently remove them to California. The judge designated
defendant as parent of primary residence and plaintiff as the parent of alternate
residence. She awarded plaintiff summer parenting time beginning one week
after the end of school until one week before the first day of school. The judge
granted plaintiff parenting time on all long weekends when the children do not
have school and alternated the Thanksgiving and Easter holiday breaks between
the parties. The Christmas and New Years holiday break would be shared.
Plaintiff was granted daily telephone and video contact with the children and the
right to visit them in California during months in which he does not have
parenting time.
I.
Our standard of review is such that we will not disturb a trial judge's
factual findings when they are "supported by adequate, substantial and credible
evidence." Rova Farms Resort v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974).
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We only "disturb the factual findings and legal conclusions of the trial judge
[when] we are 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 Fagliarone v. Twp. of N. Bergen,
78 N.J. Super. 154, 155 (App. Div. 1963)). However, "all legal issues are
reviewed de novo." Ricci v. Ricci, 448 N.J. Super. 546, 565 (App. Div. 2017)
(citing Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)).
Family courts maintain "special jurisdiction and expertise in family
matters," so "appellate courts should accord deference to family court
factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). "Deference is
especially appropriate 'when the evidence is largely testimonial and involves
questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D.,
149 N.J. 108, 117 (1997)). "Discretionary determinations, supported by the
record, are examined to discern whether an abuse of reasoned discretion has
occurred." Ricci, 448 N.J. Super. at 564.
Plaintiff argues the trial judge did not consider the children's best
interests, but rather applied the statutory best interests factors by considering
defendant's best interests. In other words, the judge applied the legal standard
in Baures v. Lewis, 167 N.J. 91, 116 (2001), which focuses on the needs of the
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parent seeking to remove the children, rather than considering the children's best
interests under Bisbing v. Bisbing, 230 N.J. 309, 313 (2017), which overruled
Baures.
Plaintiff asserts the court's failure to order the children's return to New
Jersey pendente lite tainted the trial because the focus became whether it was in
the children's best interests to return to New Jersey. This improperly shifted the
burden of proof to plaintiff contrary to N.J.S.A. 9:2-2 and Dever v. Howell, 456
N.J. Super. 300, 311 (App. Div. 2018), which places the burden on the parent
seeking removal to show cause for the removal based on the best interests
factors.
Defendant contests the trial judge's findings under virtually each best
interests factor. Beyond the factors, he alleges the judge also failed to consider
the fact his relationship with the children was cut off. He claims the facts
supported an award of fifty-fifty parenting time because N.J.S.A. 9:2-4 declares
our public policy is "to assure minor children of frequent and continuing contact
with both parents after . . . separat[ion] . . . ."
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II.
Courts should apply the best interests analysis to determine cause under
N.J.S.A. 9:2-4 in all removal disputes. Bisbing, 230 N.J. at 312-13. N.J.S.A.
9:2-4(c) states:
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.
In Pascale v. Pascale, 140 N.J. 583, 598 (1995), our Supreme Court held:
"Although both [legal and physical custody] create responsibility over children
of [separated parents], the primary caretaker has the greater physical and
emotional role." The Court stated:
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[T]he many tasks that make one parent the primary,
rather than secondary, caretaker [include]: preparing
and planning of meals; bathing, grooming, and
dressing; purchasing, cleaning, and caring for clothes;
medical care, including nursing and general trips to
physicians; arranging for social interaction among
peers; arranging alternative care, i.e., babysitting or
daycare; putting child to bed at night, attending to child
in the middle of the night, and waking child in the
morning; disciplining; and educating the child in a
religious or cultural manner.
[Id. at 598-99.]
The secondary caretaker role is equally important and exercised by means of a
parenting time schedule befitting the circumstances of the case. Id. at 597.
A.
We reject plaintiff's claim the trial judge did not consider the children's
best interests and viewed the case through the lens of defendant's best interests.
The judge's findings under the statutory factors clearly considered whether those
factors served the children's best interests. Several of the best interests factors
focus on the parents' roles in the children's lives or the parents' living and
working circumstances. This does not mean that the court reverted to the now -
discarded Baures standard. Under Baures, the parent seeking the removal had
to prove their move was in good faith and not inimical to the children's best
interests by addressing the following factors:
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(1) the reasons given for the move; (2) the reasons
given for the opposition; (3) the past history of dealings
between the parties insofar as it bears on the reasons
advanced by both parties for supporting and opposing
the move; (4) whether the child will receive
educational, health and leisure opportunities at least
equal to what is available here; (5) any special needs or
talents of the child that require accommodation and
whether such accommodation or its equivalent is
available in the new location; (6) whether a visitation
and communication schedule can be developed that will
allow the noncustodial parent to maintain a full and
continuous relationship with the child; (7) the
likelihood that the custodial parent will continue to
foster the child's relationship with the noncustodial
parent if the move is allowed; (8) the effect of the move
on extended family relationships here and in the new
location; (9) if the child is of age, [their] preference;
(10) whether the child is entering [their] senior year in
high school at which point [they] should generally not
be moved until graduation without [their] consent; (11)
whether the noncustodial parent has the ability to
relocate; (12) any other factor bearing on the child's
interest.
[167 N.J. at 116-17.]
That some of the Baures factors implicate similar considerations under the
N.J.S.A. 9:2-4(c) best interests factors, namely the: children's educational and
general needs; parties' interactions with one another and the children; and
children's ages and preferences, does not persuade us the judge adjudicated this
case using Baures. Her findings clearly considered the statutory best interests
factors. Moreover, she was not confined to the statutory factors because
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N.J.S.A. 9:2-4(c) expressly provides Family Part judges "shall consider but not
be limited to the [statutory] factors . . . ." Therefore, it was reasonable, indeed
expected, that the trial judge would discuss the parties' living circumstances in
New Jersey and California, their extended family relationships, and their
working conditions. However, this did not transform the judge's findings into a
Baures analysis.
We are unconvinced the fact that the children were permitted to remain in
California pendente lite either improperly shifted the burden of proof onto
plaintiff or tainted the outcome of the case. The record not only shows a history
of travel and residency on both coasts, but also that the parties' relationship
endured tumult and defendant's decision to remain in California was borne of
the breakdown in the parties' relationship, rather than a desire to prevent plaintiff
from having custody or parenting time. Under the circumstances, it was
reasonable for defendant to remain in California as she did not have a means of
residing independently with the children in New Jersey. Given that the evidence
supports the judge's finding that defendant fulfilled the role of the children's
primary caregiver as defined by Pascale, it would be unreasonable to compel her
to return to New Jersey without a means of supporting herself and the children
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and living independently of plaintiff. The argument that the court shifted the
burden of proof lacks merit.
B.
Plaintiff attacks the trial judge's statutory findings. He claims she could
not find that remaining in California would improve the parties' ability to
communicate because both experts opined the distance worsened the parties'
relationship. Moreover, plaintiff testified that co-parenting would be easier if
defendant was in New Jersey.
Plaintiff argues best interests factor two could not be in equipoise as the
judge found, because she ignored that defendant would not permit parenting
time in New Jersey absent a court order. Defendant admitted she turned off the
Facetime feature on the older child's iPad, preventing her from calling plaintiff
whenever she wanted.
Plaintiff claims the trial judge misapplied the third best interests factor
because she assumed the children living in a blended household with their step-
siblings was not in their best interests. The judge also disregarded his testimony
the children enjoyed a good relationship with his girlfriend, having spent two
summers in New Jersey with plaintiff's family. Her conclusion that this factor
favored defendant because the children would have to adjust to living with their
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blended family ignored the fact defendant removed the children from New
Jersey. In other words, but for defendant's unilateral actions, there would be no
need for the children to adjust.
Plaintiff asserts the trial judge should have considered that defendant
made allegations of domestic violence that were neither supported by the record
nor proven when it weighed best interests factor four. The judge's factor seven
findings were also erroneous because there was no "substantial evidence"
presented to show the children's needs were an issue. The finding that defendant
was better able to meet the children's needs ignored: the pendente lite order,
which stated the court would not draw any inferences from the fact the children
resided in California pendente lite; that plaintiff sought their return pendente
lite; and that the judge found he was a capable of meeting their needs.
Plaintiff contends the trial judge misapplied best interests factor eight
because both experts opined each party provided a stable home environment,
and both parties were amenable to shared custody. The judge found this factor
favored defendant, despite the fact she deprived him of the children, depends on
her parents for shelter, and works only part-time. Plaintiff argues the judge was
mistaken when she found that "removing [d]efendant as parent of primary
residen[ce] of the children is not in the children's best interest" because
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defendant's primary residence status was the product of her unlawfully removing
the children.
Likewise, the trial judge erred in weighing factor nine because her concern
about disrupting the older child's schooling and activities was predicated on
defendant unlawfully keeping the children in California. The judge also failed
to consider that disrupting the education of young children is far different than
disrupting a child's high school education.
The trial judge also misinterpreted best interests factor eleven because she
ignored defendant's misconduct. She also did not consider his expert's testimony
that the distance between the parties' homes was the "central risk factor in this
case." The judge should have weighed factor twelve evenly because defendant's
decision to keep the children in California, and her refusal to permit parenting
time in New Jersey prevented him from spending more time with them.
The judge also ignored defendant's unilateral removal of the children
when she assessed factor thirteen, and her decision was clouded by the fact that
she considered defendant the primary parent, which only happened because
defendant acted unlawfully. He asserts he has a flexible work schedule and
family to assist him with caring for the children, which would defray the cost of
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work-related childcare, and defendant's complaints about affordable living in
New Jersey.
We decline to second-guess the trial judge's application of the facts to the
statutory factors because that is not our role on appeal. See R. 2:10-2. The trial
judge's findings are supported by the adequate, substantial, and credible
evidence in the record, and she neither abused her discretion nor misapplied the
law, in weighing the N.J.S.A. 9:2-4(c) factors.
Many of plaintiff's disagreements with the trial judge's findings,
particularly best interests factors two, eight, eleven, twelve, and thirteen, are
predicated on his view that defendant's residence with the children is unlawful.
However, we affirmed the trial judge's rejection of this argument.
With respect to the balance of plaintiff's arguments as to why the judge
erred not based on the children's residence pendente lite, we are unconvinced
they would lead to a different outcome. As to factor one, the circumstances
presented do not persuade us that compelling defendant and the children to move
back to New Jersey is in the best interests of the children compared to the
parenting time awarded plaintiff and the imposition of a parenting coordinator
to facilitate it. The judge's finding under factor three was not based on a
prejudice against blended families, but rather a realistic assessment that young
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children of varying ages would need time to adjust to one another, which could
be disruptive and contrary to their best interests. The evidence supported the
fact the parenting time awarded plaintiff would allow the parties' children the
space to acclimate to their new siblings better than a fifty-fifty custody
arrangement. Plaintiff's argument with the judge's finding under factors four,
seven, and nine lack merit. R. 2:11-3(e)(1)(E).
C.
Plaintiff argues the parties should have a fifty-fifty parenting schedule in
New Jersey. He claims the trial judge violated public policy, which promises
children "frequent and continuing contact with both parents . . . ." N.J.S.A. 9:2-
4. We part ways with plaintiff's interpretation of the statute.
N.J.S.A. 9:2-4 states it is our "public policy . . . to assure minor children
of frequent and continuing contact with both parents after the parents have
separated . . . 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." The
statute further provides "the rights of both parents shall be equal[,]" ibid., and
grants the court authority to assure those rights by means of awarding joint, sole,
or "any other" legal and physical custody arrangement that is in the child's best
interests, N.J.S.A. 9:2-4(a), (b), and (c).
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N.J.S.A. 9:2-4's reference to "frequent and continuing contact with both
parents" and that both parents' rights are equal does not mean that courts must
award fifty-fifty physical custody. If this were the case, there would be no need
for the legislative mandate to balance the best interests factors or for the Family
Part's ability to award joint, sole, or any other form of physical custody pursuant
to N.J.S.A. 9:2-4(a), (b), and (c).
The mandate of frequent and continuing contact with both parents can be
accomplished in myriad ways without the necessity of fifty-fifty custody. Here,
this was achieved by the lengthy summer parenting time the trial judge granted
plaintiff, in addition to other parenting time order throughout the year, and the
daily video and electronic contact between plaintiff and the children.
The language in the statute regarding the equality of each parent's rights
does not mean that courts must award fifty-fifty custody. The statute is
structured as follows:
In any proceeding involving the custody of a minor
child, the rights of both parents shall be equal and the
court shall enter an order which may include:
a. Joint custody of a minor child to both
parents, which is comprised of legal
custody or physical custody which shall
include: (1) provisions for residential
arrangements so that a child shall reside
either solely with one parent or
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alternatively with each parent in
accordance with the needs of the parents
and the child; and (2) provisions for
consultation between the parents in making
major decisions regarding the child’s
health, education and general welfare;
b. Sole custody to one parent with
appropriate parenting time for the
noncustodial parent; or
c. Any other custody arrangement as the
court may determine to be in the best
interests of the child.
[N.J.S.A. 9:2-4.]
The plain language of the statute shows the Legislature intended that both
parents have the equal right to seek custody of their children , which the court
has the discretion to order in the form of joint, sole, or in any other form that is
in the best interests of the children.
Joint physical custody is "rare." Pascale, 140 N.J. at 597. "'[J]oint
physical custody' means that the child lives day in and day out with both parents
on a rotating basis. Numerous 'parenting times' with a child do not constitute
joint physical custody; to constitute joint custody, each parent must exert joint
legal and physical custody over the child." Ibid. For these reasons as well, we
decline to read into the statute a mandate for fifty-fifty custody. Further, our
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review of the facts in the record does not support the conclusion the judge erred
by not awarding fifty-fifty custody in New Jersey.
III.
To the extent we have not addressed an argument raised on appeal it is
because it lacks sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
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