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Perez v. Sanchez


August 9, 2007


On appear from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2677-06.

Per curiam.


Submitted July 31, 2007

Before Judges Gilroy and Lihotz.

Defendant appeals from a Family Division custody order entered on October 20, 2006. Defendant maintains the trial court erred in denying his request for equal physical custody. We affirm.

The parties are now divorced and have one child, who is age three. When plaintiff separated from defendant, on August 28, 2006, she left the former marital home, taking the child. Plaintiff's new residence is approximately one-half mile from defendant's home. Custody mediation was unsuccessful, as plaintiff disagreed with defendant's request for shared physical custody. Although defendant was able to see the child everyday, he specifically desired more than the one overnight visit per week that he had been spending with the child.

In reviewing defendant's motion, Judge Coleman determined no benefit would result from a best interests investigation, R. 5:8-1, which involves a review and report from a family probation officer who,

[j]ust goes to the homes and looks at the homes, . . . [and] has a talk with you . . . . The child is being properly cared for . . . . You both have homes. You're both fit parents. I don't see a best interests investigation coming back with anything different than that.

In further probing the parties' positions on custody, Judge Coleman considered their current practice, which had been in effect for over one year, and which plaintiff asserted was working well without disruption or discomfort for the child. He then concluded:

The child has to live somewhere and it's very difficult to take a child that age and split the child physically between two places, notwithstanding the fact that they live in the same town. There's no point and I believe that it is not in the best interest of this child, who is just two years of age, to attempt to spend 50 percent of her time with you and 50 percent of her time with [her mother].

I'm giving you joint legal custody, which gives you the right to have a part in decision[-]making that's made concerning the child. You've got to be spending time with the child, which I think is sufficient [for] a bond with the child and [to] develop a relationship with the child. I don't see the need to give you 50[]percent [physical] custody of the child.

Although Judge Coleman granted defendant's request for joint legal custody, he awarded physical custody to plaintiff and awarded parenting time to defendant, which included: every Monday and Wednesday after school until dinner and every Friday 7 p.m. overnight to Saturday 7 p.m.

The scope of our review is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. "Trial court findings are ordinarily not disturbed unless 'they are so wholly unsupportable as to result in a denial of justice.'" Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)); Roe v. Roe, 253 N. J. Super. 418, 432 (App. Div. 1992).

"Custody issues are resolved using a best interests analysis that gives weight to the factors set forth in N.J.S.A. 9:2-4(c)." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). Family Part judges are frequently called upon to make difficult and sensitive decisions regarding the safety and well-being of children. Our review of the record discerns that Judge Coleman's determination to award legal custody to both parents with physical custody to only one and liberal visitation rights to the other gave proper consideration to and afforded protection of defendant's statutory right "to share the rights and responsibilities of child rearing." N.J.S.A. 9:2-4.

We find no misapplication of discretion or denial of justice in the trial court's decision. Judge Coleman reviewed the pleadings and patiently considered the arguments of the parties, making his findings and conclusions after taking into account the law and the particular circumstances of the case before him. See Higgins v. Polk, 14 N.J. 490, 493 (1954).

Defendant's suggestion that an "award of joint physical custody to both parents . . . will be the only way to preserve the relationship between them and their child" is unsupported. "The ability of parents to put aside their personal differences and work together for the best interests of their child is the true measure of a healthy parent-child relationship." Nufrio v. Nufrio, 341 N.J. Super. 548, 550 (App. Div. 2001). Defendant presented no evidence to justify a change in the parties' past practices, to which their young daughter had adequately adjusted. Absent a showing that an award of joint physical custody served the child's best interests, the determination to deny such a request will be upheld. See Pascale v. Pascale, 140 N.J. 583, 601 (1995).



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