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Peralta v. Garrido

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 8, 2008

MELIDA PERALTA, PLAINTIFF-RESPONDENT,
v.
CESAR GARRIDO, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FD-21-392-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 21, 2008

Before Judges Skillman and Graves.

Plaintiff Melida Peralta and defendant Cesar Garrido are the parents of a daughter, now five years old. Defendant appeals from an order dated January 3, 2008, which grants the parties "alternate weekly parenting time with the child," but designates the mother as the "primary caretaker" and "custodial parent." Because that order specifically provides that it "shall remain in effect until the child is in Kindergarten," and the child is now in Kindergarten, the matter is remanded to the Family Part for further proceedings consistent with this opinion.

In her verified complaint for custody dated May 22, 2007, plaintiff asked to be designated as the "primary residential" parent, but she also stated she wanted "the parties to have joint legal and physical custody." In his answer and counterclaim, defendant agreed to "joint legal and physical custody," however, he asked the court to designate him as the "primary residential" parent.

On June 29, 2007, the court ordered the parties to attend mediation. The same order granted the parties "joint legal and physical custody until further order of the court," and it stated the parties were to have "alternate weekly parenting time with the child." In addition, the order allowed each parent to make "day to day decisions about all matters pertaining to the child's health, education, activities and general welfare," and it required the parties to "jointly share in the authority and responsibility of all major decisions concerning the child's health, education, activities and general welfare."

The parties were the only witnesses to testify during the custody trial on September 27, 2007. When plaintiff was asked whether defendant was a good father, she testified, "Yes, I think he's a good father." And when defendant was asked to describe Ms. Peralta's role as a parent, he testified, "She's a good mother."

During summations, defendant's attorney argued that defendant was seeking to maintain "the status quo." On the other hand, plaintiff's attorney argued that the shared physical custody arrangement mandated by the order entered on June 29, 2007, was not in the best interests of the child:

The point is that... based on the parenting order... by Judge O'Connor, my client was very dissatisfied, although Mr.

Garrido would like to keep it status quo, the bottom line is this child... will be adversely affected in terms of what my client suggests in her testimony that she has behavioral issues and that she's coming back a different child than when she left.

After hearing from both parties and their attorneys, the court ruled the parties would continue to have "alternate weekly parenting time," but the mother would be designated "the primary caretaker of the minor child," and she would be "considered the custodial parent." The court stated:

The hard part is who should be the custodial parent. As I've said this is a difficult task for me and I have to pick one over the other. It's a very, very difficult task. You're both terrific parents, you're great parents, and I really admire you.... It's very obvious to me you both love the child very, very much. And it's a tough decision to make. I have to make it, that's what I'm here to do.

I do find that the mother was the primary caretaker for the child. And that happens, because a lot of times the child is small.... [A]nd I don't hold anything against--believe me I don't hold anything against the father that things weren't going well with the mother and that he moved out. But he saw the child everyday. He really did, so I'm not holding that against the father. It's a tough call to make.

I went back and forth in my mind, but I do find that the mother should be the primary caretaker--has been the primary caretaker for the child. And I do find that the mother, in my opinion, should be granted the custodial parent. All right. I will keep everything else the same.

....

So this will stay in place until [the child] goes to kindergarten. Now when she goes to kindergarten in a year we may have to readdress it.

As the court obviously anticipated, now that the child is attending kindergarten there is a need to review the parenting time schedule established by the court. In addition, the portion of the order designating plaintiff as "the primary caretaker of the minor child" and "the custodial parent" must be vacated because the court failed to articulate the reasons for its decision. Custody and visitation 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). The same statute requires a judge to specifically state the statutory factors "which justify any custody arrangement not agreed to by both parents." N.J.S.A. 9:2-4(f). Unfortunately, that was not done in this case.

In view of the foregoing, the matter is remanded to the Family Part for such additional proceedings as may be necessary and appropriate to fully consider the best interests of the child.*fn1 Of course, "the court should strain every effort to attain for the child the affection of both parents rather than one." Turney v. Turney, 5 N.J. Super. 392, 397 (App. Div. 1949).

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.


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