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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...