January 27, 2010
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FD-20-2020-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2009
Before Judges Messano and LeWinn.
The parties, who have never been married to each other, are the parents of a twelve-year-old daughter. Defendant appeals from the November 7, 2008 order of the Family Part granting plaintiff primary residential custody of the child and permitting him to relocate with her to Colorado. For the reasons that follow, we affirm.
The pertinent factual background may be summarized as follows. The parties shared custody of the child during the first seventeen months of her life. They separated, however, in 1998 when plaintiff moved to Florida; he returned to live in New Jersey in 2001. It is undisputed that defendant "[h]istorically, . . . has been [the child's] primary caretaker" since 1998, "and the parent most actively involved with [the child]'s teachers and counselors, and healthcare providers." The relationship between the parties became contentious after plaintiff's return to New Jersey. Neither party applied to the court for custody or support, however, until May 22, 2008, when defendant filed a domestic violence temporary restraining order (TRO) against plaintiff. The predicate for that TRO was a series of telephone conversations between May 20 and May 22, 2008, in which plaintiff sought defendant's consent to allow him to have custody of their daughter and to move to Colorado with her. Defendant alleged that plaintiff had harassed her during those conversations.
Also on May 22, 2008, plaintiff filed a petition for custody of the child, alleging that he had just learned that defendant had abused her in the past. Plaintiff also sought permission to relocate to Colorado with the child and his new wife, Ana, and their child.
Defendant's TRO was dismissed following a hearing, at which Ana testified that defendant had recently admitted to her that she had difficulty raising her daughter and had once put her in the dryer because of her crying. Ana further testified that when she reported this fact to plaintiff, he became very upset and admittedly left messages on defendant's telephone expressing his shock and anger. This is what prompted plaintiff to file a complaint for custody of their daughter.
Following the dismissal of defendant's TRO, the judge entered an order on plaintiff's pending custody complaint, directing the Division of Youth and Family Services (DYFS) to immediately investigate the allegations of abuse and to report back to the court. In addition, because of plaintiff's request to leave the state with the child at the end of the summer, and some evidence that he used marijuana, the judge ordered plaintiff to undergo a substance abuse evaluation and also ordered a custody investigation to be completed by Intervention Specialists. Defendant retained temporary primary residential custody of the child, and plaintiff had parenting time on alternate weekends and holidays and liberal telephone contact.
The DYFS investigation concluded that the allegations of physical abuse were unfounded and the child's safety was not at risk. The report recommended that defendant and the child have counseling, and further noted that the child had witnessed her father using marijuana during a recent weekend visitation.
The judge continued residential custody of the child with defendant and, at the conclusion of the school year in June 2008, implemented a summer schedule of alternate weeks with each parent. The judge scheduled a further hearing on August 4, 2008.
At that hearing, the report of Intervention Specialists was introduced and recommended that primary residential custody of the child be awarded to plaintiff and that he be permitted to move to Colorado with her. The judge conducted an in camera interview of the child on August 8, 2008, and thereafter scheduled trial for August 25 and 26, 2008. During that interim, the judge permitted plaintiff to have parenting time with the child in Colorado.
At the conclusion of trial, the judge reserved decision but entered an interim order granting primary residential custody to plaintiff and permitting him to relocate to Colorado with the child for the beginning of the school year. The parties continued to share joint legal custody and defendant was afforded daily telephone access to her daughter.
On November 7, 2008, the trial judge issued a comprehensive opinion, in which she reviewed the evidence and thoroughly analyzed the factors governing both a custody determination, as set forth in N.J.S.A. 9:2-4, and a removal application, as articulated by the Supreme Court in Baures v. Lewis, 167 N.J. 91, 116-17 (2001). Based upon her findings and analysis, the judge concluded that notwithstanding "the fact that [defendant] has been the de facto primary custodian of [the parties' daughter] since the parties' separation," there had been "a substantial change in circumstances this year which makes it in [the child]'s best interest to designate her father as her primary residential custodian." Specifically the judge noted
that the change in circumstances in this case, is the father's decision to go with his wife and their little daughter to Colorado to complete [a] veterinary program at Colorado State that has brought to light the issue of [defendant]'s inappropriate physical discipline in the past, during the time that [the child]'s mother and father argued about [plaintiff]'s request to move to Colorado and take [the child] with him. If the instances of physical punishment had only been in the distant past, the factor of [the child]'s safety at this point might have been dealt with by [defendant] taking parenting classes and engaging in therapy, without being considered a change in circumstances, because the risk to [the child]'s safety would have been more remote.
However, the incident which occurred in May of this year, in the middle of the arguments about [the child] moving, which involved [defendant] becoming very angry and pulling [the child]'s then long hair, dragging her upstairs to the bathroom and hitting her numerous times, clearly scared [the child] and scares this [c]court as well. The [child]'s response to the question in her interview with this [c]court as to whether there have been any changes in the house since [defendant's boyfriend] left, that "Mommy is madder now because [defendant's younger daughter] gives her stress," also gives this [c]court a great deal of concern because [defendant] is again a single parent, as she was when she and [plaintiff] broke up . . . .
Another factor which "weigh[ed] heavily" in the judge's decision was the child's "very strong preference to go with her father and Ana to Colorado . . . ." The judge found that the child's "strong preference is partly because of fear of her mother, and partly because she genuinely wants to spend more time with her father, Ana and [her half-sister] Alyssa."
The judge determined that if defendant "successfully completes the parenting classes she began, and engages in a course of individual therapy to address the issues of anger management and her emotional interaction with her children, she should be able to enjoy holiday and summer vacations with her daughter." The judge concluded:
Accordingly, [plaintiff] has permission to relocate with [the child] to . . . Colorado, as her primary residential custodian. The parties will continue to share joint legal custody with respect to major decisionmaking, [sic] but they will need to rely on their intermediaries unless their ability to communicate with each other improves with therapy. [Plaintiff] is directed to arrange counseling for [the child] in Colorado to deal with the separation from her mother and her family and unresolved issues in her relationship with her mother.
[A]s of the entry of this [o]rder, [the child] should spend at least half of her Christmas vacation this year, and at least one other school break in New Jersey between now and the end of this school year, and at least two weeks in New Jersey in the summer . . . .
The judge entered an order reflecting her decision, setting defendant's child support obligation at $176 per week, and further providing that "[p]ayment for the cost of [the child]'s round trips [to] New Jersey should be alternated so that each party will purchase a round trip ticket for [the child], every other trip."
On appeal, defendant raises the following contentions for our consideration:
THE COURT DID NOT WEIGH ALL OF THE CUSTODY FACTORS OF N.J.S.A. 9:2-4 CORRECTLY
THE COURT VIOLATED THE APPELLANT'S DUE PROCESS RIGHTS BY REFUSING TO PERMIT DISCOVERY OF THE LETTER WRITTEN BY THE CHILD TO THE COURT
THE COURT VIOLATED THE APPELLANT'S DUE PROCESS RIGHTS BY REFUSING TO PERMIT APPELLANT A TRANSCRIPTION OF THE CHILD INTERVIEW CONDUCTED IN CAMERA
THE COURT ERRED IN ADMITTING THE REPORT OF INTERVENTION SPECIALISTS AND IN ADMITTING THE TESTIMONY OF CYNTHIA PAGLIO
THE COURT SET IMPROPER CONDITIONS ON THE APPELLANT'S PARENTING TIME WITH THE MINOR CHILD OF THE RELATIONSHIP
THE COURT ERRED IN REQUIRING THE APPELLANT TO SHARE IN THE TRAVEL EXPENSES OF THE MINOR CHILD OF THE RELATIONSHIP
THE COURT ERRED IN SETTING CHILD SUPPORT BY NOT TAKING INTO ACCOUNT THE LOWER COST OF LIVING IN COLORADO AND THE INCREASED BURDEN ON THE APPELLANT OF SHARING IN THE TRANSPORTATION COSTS FOR THE MINOR CHILD OF THE RELATIONSHIP
Having reviewed these contentions in light of the record and controlling legal principles, we find them to be without merit. We affirm substantially for the reasons set forth in the November 7, 2008 opinion by Judge Kathryn A. Brock. R. 2:11- 3(e)(1)(A). We add only the following comments.
In determining the threshold issue as to whether there should be a change in the existing de facto custody arrangement, we are satisfied that the judge comprehensively considered and properly weighed the factors set forth in N.J.S.A. 9:2-4(c), which are:
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.
As in removal decisions, "'[t]he paramount consideration is the safety, happiness, physical, mental and moral welfare of the child. . . . Each case is [to be] decided on its own facts and circumstances.'" Sacharow v. Sacharow, 177 N.J. 62, 82 (2003) (quoting Fantony v. Fantony, 21 N.J. 525, 536-37 (1956)). We are satisfied that the trial judge adequately addressed the pertinent statutory factors in her decision, particularly with respect to the child's "interaction and relationship . . . with [her] parents[,] . . . [her] safety[,] . . . preference . . . [and] needs . . . ." The judge also addressed "the parents' ability to agree, communicate and cooperate in matters relating to the child[,] . . . the stability of the home environment offered . . . [and] the fitness of the parents . . . ."
N.J.S.A. 9:2-4(c). The record supports the judge's findings with respect to these factors. R. 2:11-3(e)(1)(A).
We turn to the judge's decision to allow plaintiff to relocate to Colorado. In Baures, supra, 167 N.J. at 115, the Court recognized that
[i]n a removal case, the parents' interests take on importance. However, although the parties often do not seem to realize it, the conflict in a removal case is not purely between the parents' needs and desires. Rather, it is a conflict based on the extent to which those needs and desires can be viewed as intertwined with the child's interests.
In "assessing whether to order removal," a trial judge is advised to look to the following factors relevant to the plaintiff's burden of proving good faith and that the move will not be inimical to the child's interest: (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 non-custodial 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 non-custodial 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, his or her preference; (10) whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent; (11) whether the non-custodial parent has the ability to relocate; (12) any other factor bearing on the child's interest.
[Id. at 116-17.]
We need not reiterate the trial judge's extensive analysis of these factors here, as we have noted our concurrence with that analysis. R. 2:11-3(e)(1)(A). To the extent that defendant's contentions challenge those aspects of the judge's decision, we find such arguments to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
We briefly address defendant's contention that the trial judge violated her due process rights by refusing to allow her to read a letter the child wrote to the judge and by barring her from obtaining a transcript of the judge's in camera interview with the child. In a January 21, 2009 letter to defendant's appellate counsel, who sought discovery of that letter and the interview tapes, the judge denied counsel's request for the following reasons:
Generally, I would grant your request pursuant to Rule 5:8-6, but in this case, as indicated in my Letter Opinion, concern about [the child]'s safety with her mother was a major factor in my decision to award primary residential custody to [plaintiff].
[The child] was very concerned that her mother and her mother's attorney not see the letter she wrote to the court, . . . explaining the reasons that she wanted to go to Colorado with her father and her stepmother. For that reason, I denied defense counsel's motion to see the letter during the course of the trial. I also explained to [the child] as I stated on page 36 of the Opinion, that I needed to go over the information contained in the letter with her during the interview and report on it so that her mother and her attorney would know what it was. I also noted on page 29 of the Opinion how frightened [the child] appeared to be in the . . . interview on August 8, 2008[,] and how worried she was about who would know about her interview.
As the appellate court stated in Uherek v. Sathe,*fn1 . . . the rule permits the release of the transcript in a pending custody proceeding, recognizing that such private statements by the child should not be more readily available than required by the demands of due process.
In this case, because of what I found to be serious concerns about [the child]'s safety and her fear of release of her letter as well as everything she said to the court in the interviews, I meticulously reported to the parties in the Opinion, the information which [the child] provided that was relevant to the factors related to custody in order to meet the demands of due process and also honor [the child]'s concerns.
[The child] trusted this [c]court and agreed to the interview with the understanding that I would not release her letter and that I would report on our conversation. Therefore, under these circumstances I will not release the transcripts of the interviews.
We concur with defendant that she should have been entitled to discovery of the letter and the in camera interview.*fn2
However, we have reviewed those documents and we are satisfied that they have no significant bearing upon the outcome at trial.
They do not support defendant's allegation that the child was "programmed" to make false accusations against her in an effort to skew the result. We have found nothing in either the letter or the interview to diminish our confidence that the trial judge's "findings of fact are adequately supported by the evidence . . . ." R. 2:11-3(e)(1)(A). Our review of these items also convinces us that defendant's cross-examination of witnesses and her own direct examination would not have been significantly different had she access to them at trial.
We do direct, however, that the trial judge shall release the child's letter and interview transcript to counsel for defendant under conditions, if any, which the judge deems appropriate.
We are satisfied that defendant's remaining arguments do not warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
Suffice it to say, the condition that defendant participate in individual counseling and therapy as a condition of parenting time is clearly supported by the record.
The judge's financial decisions, both regarding defendant's child support obligation as well as the requirement that she equally share the cost of the child's transportation to and from New Jersey, were based upon the judge's review of the parties' respective incomes; defendant does not challenge those findings.
Finally, defendant's argument regarding her entitlement to a credit against child support based on the allegedly lower cost of living in Colorado is wholly without merit. Child support is based upon the Child Support Guidelines. Moreover, defendant presents no evidence that the cost of living in Colorado is lower then in New Jersey.