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Greer v. Kuprel


October 15, 2008


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FD-16-1250-03.

Per curiam.


Argued: September 24, 2008

Before Judges Parrillo, Lihotz, and Messano.

We are requested to review a custody determination rendered following a plenary hearing held in accordance with our remand. We need not recite the historical facts prior to that first appeal, as they are set forth in our prior opinion, Greer v. Kuprel, No. A-3943-05 (App. Div. Oct. 24, 2006) (slip opinion 2-9). Suffice it to say, that based upon our review of the record in the prior proceeding, we concluded the trial court applied the incorrect legal standard when analyzing defendant's relocation request and remanded the matter for further proceedings. Id. at 12. We specifically instructed the trial judge to reconsider[] in light of the appropriate standard, with the burden placed on defendant as the non-custodial parent to demonstrate that [the child's] interest would be better served by a transfer of custody to her, N.J.S.A. 9:4-2c, and by a relocation to Florida. The court shall reach its conclusion based on the record previously established and on such further testimony and evidence as it deems necessary to update the status of the parties and make a determination as to [the child's] best interests.

Id. at 15.

Pending the hearing, the child continued to reside with defendant in Florida subject to plaintiff's parenting time. The trial court set a discovery schedule, and the parties arranged appointments with the two experts who testified in the previous proceeding.*fn1 Trial commenced September 4, 2007 and continued for three days. Trial testimony was provided by the parties, the same experts appearing in the first proceeding, defendant's husband, defendant's mother, the child's former daycare provider, plaintiff's sister, and plaintiff's fiancé. The trial court rendered a written opinion on October 22, 2007, in which the court concluded the child's best interests were served by remaining in Florida in defendant's primary custody.

On appeal, plaintiff argues the trial court (1) applied the incorrect legal standard when reviewing defendant's relocation application; (2) failed to give deference to the parties' prior custodial agreement; (3) rendered a conclusion against the weight of the evidence presented; and (4) erred in relying upon the opinion of Dr. Dashner, the court appointed expert. Additionally, upon reversal of the trial court's determination, plaintiff requests we invoke our original jurisdiction to conclude this matter.

Our review of any order entered by the trial court is limited. We will not disturb an order unless it is unsupported by the facts of record, Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974), or the judge misapprehended or misapplied the governing law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). In matters pending in the Family Part, we owe particular deference to the factual findings and discretionary decisions made by a trial judge due to the specialized nature of the court. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

After our careful review of the record, in the light of the written and oral arguments advanced by the parties and the applicable law, we affirm substantially for the reasons expressed by the trial judge in his October 22, 2007 written decision, accompanying the order determining custody. R. 2:11-3(e)(1)(A). We add these comments.

An application by a non-primary custodial parent "to relocate and remove the residence of the child to an out-of-state location must be analyzed as an application for a change of custody, where the party seeking the change in the joint custodial relationship must demonstrate that the best interests of the child would be better served by residential custody being primarily vested with the relocating parent." O'Connor v. O'Connor, 349 N.J. Super. 381, 385 (App. Div. 2002).

To determine a child's best interests, the court must analyze each of the applicable factors enumerated in N.J.S.A. 9:2-4(c). The statutory criteria are not ends, but merely means to assess the "'paramount consideration [of] the safety, happiness, physical, mental and moral welfare of the child.'" Terry v. Terry, 270 N.J. Super. 105, 119 (App. Div. 1994); (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)). In this matter, we conclude the judge's "best interests" determination reflects an objective and studied application of the relevant statutory factors.

In its review of the evidence, the court concluded the parents were in equipoise on several factors such that neither parent was favored. The trial judge determined neither parent demonstrated conduct that harmed the child and each offered a "good home environment." The court concluded the parties presented as two good parents, who each expressed a willingness to extend himself or herself for the benefit of the child.

We briefly mention the specific findings on the most heavily weighted factors that impacted the court's custodial determination. With regard to the parties' testimony, the court provided a detailed discussion describing the conflict between the parents when effectuating their joint custodial responsibilities. Consideration was given to the plaintiff's disrupted telephone communication with the child. However, notwithstanding the expressed communication difficulties, the court concluded the parental animosity had not affected the child. Moreover, theses instances had not interfered with plaintiff's relationship with his son. His parenting time exceeded by three weeks the minimum parenting time identified by the order dated December 23, 2005.

The court also considered testimony concerning instances of suggested abuse experienced while the parties lived in New Jersey. The court observed that although the tensions and emotional interactions influenced the parents' ability to communicate, the incidents had not culminated in the entry of a domestic violence restraining order.

Additionally, the trial judge attributed significance to the fact that the child's maternal grandmother lives within three blocks of defendant's home and provides care to the child while defendant works. We note that the paternal grandmother and aunt who reside in New Jersey are proximate to plaintiff's home and have also cared for the child.

The trial judge weighed the expert testimony as well. Plaintiff's expert, Dr. Hagovsky, testified the child was happy living with his mother and emotionally attached to his father. Dr. Hagovsky also found defendant's husband and plaintiff's fiancée played positive roles in the child's life. Dr. Hagovsky opined the child's best interests required that he return to plaintiff's care based on the depth of his emotional attachment to plaintiff, although he would not be harmed were he to remain in Florida.

The court appointed expert, Dr. Dashner, recommended the residential custodial arrangement remain in place because of the child's strong bond with defendant and the fact that he had adjusted well to living in Florida. Based upon the child's comments, Dr. Dashner drew the conclusion that plaintiff had often spoken about the child living in New Jersey, which inappropriately placed the child in the middle. Dr. Dashner also found plaintiff harbored anger toward defendant, which impaired his ability to co-parent the child.

The trial court weighed heavily the child's success in Florida. Neither the parents nor the experts detected any apparent problem or difficulty. The child easily reintegrates when he arrives in New Jersey or returns again to Florida. Defendant explained the parties' son had successfully commenced pre-school and his health had improved because prior asthmatic symptoms abated. The child also enjoyed a very close and happy relationship with his siblings, defendant's children, whom he "idolizes." Both experts agreed the child's relationship with his siblings was a factor to consider in a best interests determination. Dr. Dashner opined the child would not suffer if he remained in Florida but could experience "a major adjustment" with a negative impact were he to be separated from his mother and siblings.

Most of plaintiff's challenges presented on appeal assail the court's conclusion to award defendant custody as being against the weight of the evidence. Plaintiff's arguments particularly emphasize the status of the child prior to defendant's relocation to Florida and suggest that a proper review of the facts at that time would have prevented relocation. Finally, plaintiff contests the legal standard employed, suggesting the trial judge mistakenly assessed whether a move would result in "harm" to the child. We cannot accept these contentions.

A custody determination must be fluid when assessing a child's best interests. We determine the most important considerations expressed by the trial judge centered on the child's needs. It would have been improper for the trial court to ignore the child's present circumstances, which include his attachment to Florida. Thus, the court balanced the potential harm to the child if he remained in Florida against any harm if he returned to New Jersey. In that light, we perceive the court's comments regarding harm were merely directed to the consideration of the child's needs and were appropriate.

We conclude the trial judge properly considered all evidence presented and his findings and conclusions are supported by substantial, credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974).


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