A.A. VS. T.A. (FM-14-1201-17, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4724-18T4
A.A.,1
Plaintiff-Appellant,
v.
T.A.,
Defendant-Respondent.
_________________________
Submitted October 27, 2020 — Decided November 13, 2020
Before Judges Mawla and Natali.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FM-14-1201-17.
Tanya L. Freeman, attorney for appellant (Tanya L.
Freeman and Devon W. MacGillivray, on the briefs).
T.A., respondent pro se (Gregory D.R. Behringer, on
the brief).
PER CURIAM
1
We utilize initials pursuant to Rule 1:38-3(d)(12).
Plaintiff AA. appeals from a May 20, 2019 dual final judgment of divorce
awarding sole legal custody of the parties' son to defendant T.A. following a
trial. We vacate the award and remand for reconsideration.
The parties were married for eleven years when plaintiff filed his
complaint for divorce. One child was born of the marriage, who was eleven
years old at the time of trial. Plaintiff's complaint for divorce sought joint legal
custody of the child, to designate plaintiff parent of primary residence, and to
establish a parenting time schedule. Defendant's counterclaim did not address
legal custody and sought only to designate her the parent of primary residence.
In September 2017, the parties attended mediation with court staff who
prepared a memorandum of understanding (MOU) memorializing their custody
agreement. The MOU provided for: joint legal custody, designated defendant
parent of primary residence; established a parenting time, holiday, and vacation
schedule; and required the parties to encourage a relationship between the child
and the other party. In October 2017, defendant filed a domestic violence
complaint against plaintiff, alleging verbal harassment and terroristic threats.
Notably, an amended temporary restraining order (ATRO) issued later that
month listed no restraints relating to the child and established a parenting time
schedule for plaintiff.
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In November 2017, a judge, not the matrimonial trial judge, tried the
domestic violence matter and granted defendant a final restraining order (FRO),
finding harassment. The record does not contain a transcript of the domestic
violence trial; however, the FRO maintained the parenting time schedule set
forth in the ATRO, issued no restraints regarding the child, and made no custody
determination. On December 11, 2017, the parties entered into a consent order
in the domestic violence matter granting plaintiff alternating weekend parenting
time from Friday until Monday and mid-week dinner parenting time on Tuesday
and Thursday pending a final resolution of the divorce.
A three-day divorce trial occurred in April 2019. Each party and their
accounting experts testified. Prior to hearing testimony, the trial judge invited
counsel to give opening statements; plaintiff's counsel declined to do so, and
defendant's counsel spoke only regarding economic issues. The parties'
testimony mostly involved the economic aspects of the case and had little to do
with custody. Neither party proffered evidence regarding custody or parenting
time beyond the following: the divorce complaint; the December 2017 consent
order; an amended FRO; and defendant's Rule 5:8-5 custody and parenting time
plan, which proposed "the parties share joint legal custody of the . . . child[.]"
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Each party submitted pre-trial memoranda. Plaintiff's memorandum
stated: "[Plaintiff] seeks to follow the custody arrangement and parenting time
schedule set forth in the parties' [MOU.]" Defendant's trial memorandum
addressed her position on custody by discussing the fourteen N.J.S.A. 9:2 -4(c)
factors and posited as follows:
In the instant matter, an award of joint legal custody is
appropriate. Notwithstanding the parties['] personal
acrimony and the deterioration of their marriage and the
history of domestic violence, when it comes to the
major decisions for the health, education and welfare of
the child, which are generally rare in [occurrence] given
the child's age, the parties have been able to act in the
best interests of the child. [Defendant] is committed to
continuing to do so, and to make major decisions jointly
with [plaintiff].
Plaintiff offered the following limited testimony regarding custody:
PLAINTIFF'S COUNSEL: What custody and parenting
time plan do you want to follow after the divorce? . . .
PLAINTIFF: . . . I . . . have two days a week and one
other week I have weekend and two days, but two days
and five days is good.
PLAINTIFF'S COUNSEL: . . . So you want to keep the
schedule that you presently have?
PLAINTIFF: I wish I can have him all the time.
Defendant's counsel did not cross-examine plaintiff on this testimony.
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Defendant's testimony regarding custody and parenting time focused more
on residential custody than on legal custody and was consistent with her
proposed custody and parenting time plan. She described how she was involved
with the child's schooling, activities, and medical and dental care, and purchased
his clothing. Over plaintiff's counsel's hearsay objection, the trial judge
permitted defendant to testify to what the child said plaintiff told him. The judge
reasoned the testimony was admissible because it was "the plaintiff's statement.
The plaintiff can be . . . recalled to testify about the truth of those statements."
According to defendant, plaintiff allegedly told their child that he was "going to
kick [defendant] from the house. And [the child] told me if I'm going to leave
the house, I'm going to die. I told him never mind . . . I'm not going to leave
you." Defendant's counsel asked: "So does he ever say any nice things about
you to your son?" Defendant answered: "Nothing." Defendant also testified
plaintiff bought the child toy knives and guns, which she thought were
inappropriate.
Defendant testified she wanted primary residential custody of the child.
Her testimony regarding legal custody was as follows:
[DEFENDANT'S COUNSEL]: Okay, as far as joint
custody is concerned, I explained . . . what that meant
to you, that [plaintiff] would be able to participate in
decisions concerning [your son] okay? So joint legal
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5
custody, but you want physical custody with him to live
with you most of the time.
[DEFENDANT]: Yes.
Defendant also testified she wished to maintain the parenting time schedule in
the parties' consent order, but wanted plaintiff not to involve the child in the
parties' disputes or disparage defendant to the child.
Plaintiff's counsel did not cross-examine plaintiff regarding custody and
parenting time issues. Although plaintiff was recalled for rebuttal testimony,
counsel did not address custody or parenting time.
Each attorney offered an oral summation. Regarding custody and
parenting time, defendant's counsel stated: "I think we've already stipulated in
regard to custody and the parenting plan that is before . . . this [c]ourt ."
Plaintiff's counsel's summation on the subject was equally brief stating: "In
terms of custody and parenting time, that . . . issue was resolved. There's not a
dispute there."
The trial judge issued a written decision. He recounted plaintiff sought
joint legal custody in his complaint for divorce and defendant "expressed a
willingness to share legal custody with [p]laintiff." He referenced the custody
and parenting time plan proposed by defendant. He noted plaintiff's testimony
on custody was comprised of
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limited statements, [and p]laintiff provided no
testimony with respect to his relationship with [the
child], his involvement in [the child's] life prior to the
filing of his divorce complaint or after, whether and
how he meets [the child's] needs, his desire for custody,
how he would managed the operation of his business
and custody and expanded parenting time, or any other
information to assist the court in evaluating the custody
factors below.
The trial judge concluded, "[w]hile no single custody factor within N.J.S.A. 9:2-
4 was dispositive, this court is persuaded that factors (1), (2), (3), (4), (5), (7),
(9), (11) and (12), . . . favor awarding sole custody to [d]efendant, and no factors
weigh materially against this determination."
The judge's findings regarding the statutory factors persuasive regarding
sole custody were as follows:
1. The parents' ability to agree, communicate and
cooperate in matters relating to the child.
There was no[t] a lot of testimony provided on
this subject; however, the court does observe that there
is a[n FRO] in place, which prohibits generally contact
or communication between the parties. It does not
appear[] that there is any exception for communications
regarding the child . . . . Rather, it appears that [the
child] has a cell phone, and the parties communicate
directly with the child. With respect to this factor, the
court does note the following[:] The parties appear to
disagree regarding the appropriateness of toys
purchased by [p]laintiff for [the child], which include
guns and knives. Further, the court finds credible
[d]efendant's testimony that [p]laintiff involves the
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child in the litigation and states things such as
[p]laintiff will kick [d]efendant out of the house.
2. The parents' willingness to accept custody and any
history of unwillingness to allow parenting time not
based on substantial abuse.
Defendant's testimony reflected a stated desire
for custody, and more specifically to be designated as
the parent of primary physical custody. She also
acknowledged a willingness to share joint legal custody
with [p]laintiff. Aside from a statement by [p]laintiff
that he "wishes to have [the child] all the time,"
[p]laintiff made no affirmative or specific statement
regarding custody and he provided no material
information about his ability to exercise custody and
additional parenting time. There was no evidence
presented during trial that either party has been
unwilling to permit parenting time. In this context, it
must be noted that following the issuance of the initial
[TRO], [p]laintiff's parenting time was suspended.
Following the issuance of the [FRO], [d]efendant
consented to provide [p]laintiff with parenting time as
reflected by the December 11, 2017 consent order . . . .
There is no indication that the parties have failed to
follow or violated the . . . consent order regarding
parenting time.
3. The interaction and relationship of the child with its
parents and siblings.
Plaintiff provided no information about his
interactions and relationship with [the child] or what, if
any, relationship [the child] has with his two half-
sisters. Defendant testified that she has a strong
relationship with [the child], she does everything with
[him] and that she "loves him and he is the only thing
in her life." Defendant testified that she is involved in
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all aspects of his life. She is engaged in [the child's]
education, attends his events and parent-teacher
conferences, she takes him to and supports him in his
activities, including swimming and music, and takes
him to all of his medical appointments. Defendant
knew the identity of both [the child's] teacher and
doctors.
4. The history of domestic violence.
There exists a documented history of domestic
violence. In this regard, [d]efendant holds a [FRO]
against [p]laintiff, which was issued during the
pendency of this divorce litigation.
5. The safety of the child and the safety of either parent
from physical abuse by the other parent.
While there was no evidence presented that
[p]laintiff subjected [the child] to physical abuse, the
existence and need for the [FRO] held by [d]efendant
against [p]laintiff reflects that [d]efendant is not safe
from further abuse by [p]laintiff.
....
7. The needs of the child.
Plaintiff provided no testimony about [the
child's] needs or his ability to meet those needs.
Defendant testified that [the child] has no special needs.
Defendant has not worked outside of the home during
the entirety of the marriage and since [the child's] birth.
It was not disputed that [d]efendant has been the
primary caregiver for [the child] since birth. Based
upon [d]efendant's testimony regarding her
involvement with [the child's] education,
extracurricular activities and medical appointments, it
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appears that [d]efendant currently meets all of [the
child's] needs. Based upon the fact that there was no
evidence presented regarding [d]efendant's failure to
meet any of [the child's] needs in her role as the primary
caregiver, the court concludes that she has and can,
meet all of [the child's] needs.
....
9. The fitness of the parents.
No evidence was presented regarding the fitness
of the parties. The court finds that [d]efendant is fit in
all material respects as a result of her acting as [the
child's] primary caregiver during the entirety of his life
without any documented incidents or concerns. While
there is no direct evidence that [p]laintiff is unfit as a
parent, the court is unable to definitively conclude that
he is a fit parent based upon the complete absence of
information provided to this court regarding: (i)
[p]laintiff's involvement in [the child's] life prior to the
filing of his divorce complaint; and (ii) the quality of
the time spent by [p]laintiff with [the child] both before
and after the divorce complaint filing date. In addition,
it is difficult to conclude that [p]laintiff is affirmatively
fit as a parent in light of the existence of a[n FRO].
Moreover, the court finds credible [d]efendant's claims
that [p]laintiff involves the child in the litigation and
states things to [the child] such as [p]laintiff will kick
[d]efendant out of the house.
....
11. The extent and quality of the time spent with the
child prior to and subsequent to the separation.
Pursuant to a consent order, . . . [p]laintiff
currently has parenting time every other weekend from
A-4724-18T4
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pick-up after school on Friday until Monday morning
drop-off at school . . . . In addition, [p]laintiff has
parenting time every Tuesday and Thursday from after
school until 8:00 p.m. when [p]laintiff drops-off [the
child] curbside at [d]efendant's home . . . . Plaintiff
failed to provide any testimony regarding the extent and
quality of time spent with [the child] prior to December
11, 2017. While it does appear that [p]laintiff has
exercised his parenting time following the December
11, 2017 consent order, he failed to provide any
testimony regarding the quality of time spent with [the
child] during his parenting time after December 11,
2017. Although [d]efendant's testimony was not overly
detailed, it does appear that she has been the primary
caretaker for [the child] since his birth and she is
involved in all aspects of his life, including academics,
extracurricular and medical needs.
12. The parents' employment responsibilities.
Defendant does not work and has not worked
during the entirety of the parties' marriage. Defendant
is currently enrolled in college full-time and she
currently manages the parties' rental property . . . .
Defendant expressed a desire to obtain her college
degree so that she can work as an administrative
assistant. During the pendency of the divorce, it
appears that [d]efendant was able to attend college full-
time, manage the rental property . . . and tend to her
primary caretaking role for [the child].
Plaintiff is [sixty-eight] years old and he
currently collects social security retirement benefits.
However, [p]laintiff also continues to operate [a
business]. While [p]laintiff has expressed a desire to
retire . . . in the near future, he did not cite any specific
plan for the sale or wind down of his business.
Moreover, while [p]laintiff testified that he worked
A-4724-18T4
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long hours in the past, he did not provide any testimony
about his current work schedule. Rather, [p]laintiff
indicates that [the business] currently has only two
customers. Plaintiff also manages his rental properties
. . . . He did not provide the court with any indication
of the time requirements for managing the properties.
On the basis of the foregoing, the court could not make
any determinations regarding [p]laintiff's ability to
assume custody or increased parenting time.
The judge concluded as follows:
Notwithstanding [d]efendant's willingness to share
joint legal custody, following an evaluation of the
custody factors set forth in N.J.S.A. 9:2-4, on the basis
of Beck[ v. Beck, 86 N.J. 480 (1981)] . . . , this court
finds that it is in the best interest of [the child] that
[d]efendant be awarded sole legal and physical custody
of [the child]. While this court recognizes that it may
be unusual to award sole custody to [d]efendant,
especially considering that she expressed a willingness
to provide [p]laintiff with joint legal custody, the court
is constrained to consider shared legal custody by the
complete absence of information provided in support of
an award of custody (shared or otherwise) to [p]laintiff.
In this context, the court bases its decision on the
following: (i) that the parties reached no firm
agreement on custody prior to trial; (ii) there was an
absolute and total absence of information provided to
the court regarding the parties' ability to consult and
agree on issues regarding the child; (iii) there exists a
FRO that prohibits generally the parties'
communications; (iv) [p]laintiff provided no material
testimony regarding his willingness and ability to
exercise custody (legal or otherwise). As a result of the
foregoing, the court looks solely to the custody factors
to determine custody . . . .
A-4724-18T4
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Despite concluding that [d]efendant should have
sole custody of [the child], this court does acknowledge
[d]efendant's expressed desire that [the child] have a
relationship with [p]laintiff. Defendant expressed a
willingness to maintain the current parenting time
schedule within the . . . consent order and [p]laintiff
also found that schedule acceptable.
On appeal, plaintiff argues the award of sole legal custody to defendant
constituted an abuse of discretion because it was made without notice and
contrary to the parties' positions at trial. He argues the court did not address all
the N.J.S.A. 9:2-4(c) factors and incorrectly assumed the parties could not
communicate because of the FRO, yet the history of the case showed otherwise.
Plaintiff argues the award of sole custody adversely impacts his ability to travel
internationally with the child and the ability to access school and medical
records.
Plaintiff asserts he understood legal custody was uncontested because
defendant's proposed custody and parenting plan submitted prior to trial stated
she agreed to joint legal custody, she testified to joint legal custody, and did not
argue for sole custody in summation. Plaintiff argues there was no basis to
award sole legal custody and no evidence to demonstrate his unfitness despite
the domestic violence.
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"The general rule is that findings by the trial court are binding on appeal
when supported by adequate, substantial, credible evidence. Deference is
especially appropriate 'when the evidence is largely testimonial and involves
questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)
(internal citation omitted) (quoting In re Return of Weapons to J.W.D., 149 N.J.
108, 117 (1997)). "On the other hand, where our review addresses questions of
law, a 'trial judge's findings are not entitled to that same degree of deference if
they are based upon a misunderstanding of the applicable legal principles.'"
N.T.B. v. D.D.B., 442 N.J. Super. 205, 215 (App. Div. 2015) (quoting N.J. Div.
of Youth & Fam. Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002)).
The standard of review for conclusions of law is de novo. S.D. v. M.J.R., 415
N.J. Super. 417, 430 (App. Div. 2010) (citing Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
In adopting N.J.S.A. 9:2-4, our Legislature affirmatively stated:
[T]hat 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 . . . 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(d) states: "The court shall order any custody arrangement
which is agreed to by both parents unless it is contrary to the best interests of
A-4724-18T4
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the child." We are unaware of precedent interpreting N.J.S.A. 9:2-4(d), however
the Legislature's usage of the word "shall" signals its acknowledgement of the
primacy of parental autonomy to agree upon custody, while assuring the
authority of Family Part judges to protect the best interests of children. In other
matrimonial contexts, our case law is replete with similar principles. Indeed,
our Supreme Court has repeatedly held that
[s]ettlement of disputes, including matrimonial
disputes, is encouraged and highly valued in our
system. Indeed, there is a strong public policy favoring
stability of arrangements in matrimonial matters. This
Court has observed that it is shortsighted and unwise
for courts to reject out of hand consensual solutions to
vexatious personal matrimonial problems that have
been advanced by the parties themselves. Therefore,
fair and definitive arrangements arrived at by mutual
consent should not be unnecessarily or lightly
disturbed.
[Quinn v. Quinn, 225 N.J. 34, 44-45 (2016) (internal
citations omitted).]
The Court has stated: "Joint legal custody, meaning the 'authority and
responsibility for making 'major' decisions regarding the child's welfare,' is often
shared post-divorce by both parents . . . . Joint legal custody provides rights and
responsibilities to custodial parents, but it also confers rights with less
significant responsibilities to non-custodial parents." Pascale v. Pascale, 140
A-4724-18T4
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N.J. 583, 596 (1995). Furthermore, "[i]n New Jersey, joint legal custody with
physical custody given to only one parent is much more common." Id. at 597.
In cases where courts have awarded a party sole legal custody, the facts
were starker than those presented here. In Nufrio v. Nufrio, we upheld the trial
judge's award of sole legal custody where the judge found the father
does nothing that is not for his own benefit, he cannot
perceive how difficult he makes things for other people
and does not believe that he has done wrong, in
anything. He is one who believes his own lies.
....
He is pathological in his testimony and he is
totally unbelievable. His videotaping at the police
station exchanges, his complaints to the State about day
care and his multiple filings of litigation all appear to
be an attempt to assert his dominance over his former
wife.
[341 N.J. Super. 548, 552-53 (App. Div. 2001).]
We also noted the trial judge's findings the father never spoke to the
mother, laughed and smiled during her testimony, was unable to cooperate or
communicate with her and "reach even basic agreements" regarding the child.
Id. at 553. Citing Beck and Pascale, we concluded, although joint legal custody
is preferred,
the findings of the judge make it clear that any form of
"joint" custody or shared decision-making will be
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detrimental to the parties' child. The concern that the
defendant would use the label of "joint legal custody"
as a disguised attempt to harass plaintiff through
repeated applications to the court has support in the
record. Such a situation would clearly be detrimental
to the best interests of the child.
[Nufrio, 341 N.J. Super. at 555.]
Here, both parties unquestionably agreed to joint legal custody.
Defendant testified to it, plaintiff did not oppose it, and both attorneys advised
the court the issue was resolved. The evidence supported neither the judge's
decision to reject the parties' agreement nor his statutory findings.
At the outset, we note the dearth of evidence supporting the judge's
findings, which the judge acknowledged throughout his assessment of the
statutory factors. We hold, where a judge believes an issue as important as legal
custody is unsettled and is justiciable, the judge has a duty to inquire of the
parties whether this is the case. Pursuant to N.J.R.E. 101(a)(4), "[i]f there is no
bona fide dispute between the parties as to a relevant fact, the judge may permit
that fact to be established by stipulation or binding admission." Here, the record
does not support the conclusion the parties expected the judge to consider sole
legal custody. Although legal custody was clearly not in dispute, the judge
should have inquired during summations if there was any doubt in his mind.
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Even if there was an expectation the court would adjudicate legal custody,
the findings were inadequate. The judge's evidentiary ruling permitting
defendant's testimony regarding what the child said plaintiff told him about
defendant was double hearsay and a misapplication of discretion. "We will only
reverse [an evidentiary determination] if the error 'is of such a nature as to have
been clearly capable of producing an unjust result.'" Ehrlich v. Sorokin, 451
N.J. Super. 119, 128 (App. Div. 2017) (quoting Parker v. Poole, 440 N.J. Super.
7, 16 (App. Div. 2015)). Here, the judge reasoned plaintiff could repeat what
the child told her because "[i]t's the plaintiff's statement." However, the alleged
statement was not admissible pursuant to N.J.R.E. 803(b) because the child
neither testified nor was interviewed by the judge. This hearsay statement
clearly had the potential to lead to an unjust result because the judge relied upon
it in finding the first and ninth factors of N.J.S.A. 9:2-4(c) dispositive of legal
custody.
It was also an error not to interview the child. The judge addressed this
issue in his findings under the sixth statutory factor stating:
The parties did not reference any preference on the part
of [the child] regarding custody or that the current
parenting time schedule be modified to provide more or
less parenting time for one parent or the other. There
also did not appear to be any material disagreement
regarding either legal or physical custody of [the child],
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and the parties expressed no desire for the court to
interview [the child] regarding his preference. Based
on the foregoing, the court did not seek input from [the
child].
The sixth statutory factor requires the trial judge to consider "the
preference of the child [regarding custody] when of sufficient age and capacity
to reason so as to form an intelligent decision . . . ." A primary means of
ascertaining the child's preference is through an interview with the trial judge,
initiated either at a party's request or on the court's own motion. R. 5:8-6. If
the judge declines to interview a child, they must place their reasons on the
record. Ibid. A child interview is discretionary. See Pressler & Verniero,
Current N.J. Court Rules, cmt. on R. 5:8-6, (2020).
Here, the judge stated the child's preference was not dispositive of the
legal custody issue and noted he did not interview the child because there was
no "material disagreement regarding . . . legal . . . custody[.]" However, the
judge made no finding regarding the child's preference, and the lack of an
interview prevented the judge from assessing the veracity of defendant's claim
that plaintiff had improper conversations with the child, as the judge concluded
in the first statutory factor. Also, an interview with the child would have enabled
the judge to better assess his relationship with both parties as required by the
third statutory factor, whether plaintiff met the child's needs pursuant to the
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seventh factor, the ninth factor regarding parental fitness, and the eleventh factor
regarding the extent and quality of time the child spends with a parent.
Next, we note there was little evidence supporting the judge's conclusion
that statutory factors four and five were dispositive of legal custody. The judge's
findings were that, by virtue of the existence of an FRO, defendant was "not safe
from further abuse by [p]laintiff." The judge also used the existence of the FRO
to assess the ninth factor and concluded it was "difficult to conclude that
[p]laintiff is affirmatively fit as a parent[.]"
There is no doubt the judge could take judicial notice of the existence of
an FRO. N.J.R.E. 201(b)(4). Moreover, the Supreme Court has stated " there
is no such thing as an act of domestic violence that is not serious." Brennan v.
Orban, 145 N.J. 282, 298 (1996). Further, the Legislature has concluded there
is "a positive correlation between spousal abuse and child abuse; and that
children, even when they are not themselves physically assaulted, suffer deep
and lasting emotional effects from exposure to domestic violence." N.J.S.A.
2C:25-18. However, custody awards in domestic violence proceedings to the
non-abusive parent are temporary. N.J.S.A. 2C:25-29(b)(11).
The relationship between the domestic violence and its effects on major
decision making and the award of sole legal custody was not evident on this
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record. To be clear, we do not require a victim of domestic violence to re -live
the trauma of the domestic violence proceeding by testifying and enduring cross-
examination in the matrimonial matter to establish N.J.S.A. 9:2-4(c) factors four
and five. However, at a minimum, we hold if the matrimonial judge did not try
the domestic violence matter, the judge must review the transcript or audio
recording of the domestic violence proceeding and correlate it to the custody
findings in the matrimonial matter.
Finally, we see no connection between plaintiff's employment
responsibilities and the award of sole legal custody to defendant. According to
the judge, plaintiff testified he worked long hours, but did not provide "any
indication of the time requirements" associated with his work. It is not unusual
for parents to labor long hours to earn a living. At the age of sixty-eight, plaintiff
operates a business and manages rental properties; tasks we discern require a
modicum of skill and the ability to make decisions. We fail to see how these
facts rendered plaintiff incapable of participating in major decisions affecting
the child's health, education, and welfare.
To summarize, the record did not support the award of sole legal custody.
For these reasons, we vacate the sole legal custody award and remand the matter
for reconsideration. On remand the judge shall conference the matter with the
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parties to determine whether they stipulate to joint legal custody. If the judge
nevertheless concludes he cannot accept the stipulation, he shall try the issue in
accordance with the guidance set forth in this opinion.
Vacated and remanded. We do not retain jurisdiction.
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