April 29, 2010
PAUL MORGAN, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
KRISTIN MORGAN (N/K/A LEARY), DEFENDANT-APPELLANT/CROSS-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1528-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: December 9, 2009
Before Judges Axelrad, Fisher and Sapp-Peterson.
Defendant Kristin Leary (mother) appeals from an order of the Family Part entered on June 13, 2007, denying her motion to relocate with her minor children to Massachusetts. Plaintiff Paul Morgan (father) cross-appeals from the court's April 12, 2007 order denying his "motion in limine" and finding, in particular, that the parties did not have de facto shared physical custody of their minor children. We reverse and remand on mother's appeal and affirm on father's cross-appeal.
Father, presently forty-four years old, was born in New Jersey and graduated from college in Massachusetts. Mother, presently age forty-two, was raised and graduated from college in the Boston area, where her parents, siblings and extended family still reside. The parties were married on April 11, 1992, and took up residence in New York City, where father had been living. They bought a house in Madison, New Jersey, in January 2001, where mother continues to reside with their two daughters, born in 1998 and 2001.
Father left the marital home in August 2004. He moved to Chatham for a short period of time, then returned to Madison in close proximity to the marital home. The parties were divorced on August 16, 2005, incorporating a property settlement agreement (PSA) signed in March 2005. The PSA provided the parties would share joint legal custody of the children and designated mother as parent of primary residence (PPR). Pursuant to the PSA, which the parties consistently followed without apparent problem, father had parenting time every other weekend from Friday after school to Monday drop-off at school, every Tuesday for dinner, and overnight every Thursday (or through the weekend if that was how the schedule fell).
On November 23, 2005, father filed a motion for a change of physical custody based on allegations of changed circumstances, seeking to become the PPR. On January 11, 2006, mother filed a cross-motion for permission to relocate to Massachusetts based upon her engagement to James Mambro, a Boston resident, and to be closer to her extended family. Following oral argument on January 20, 2006, the court denied father's motion and directed a plenary hearing with regard to the relocation issue, memorialized in an order of that date. The court rejected father's argument that the removal issue should be evaluated according to a best interests analysis required for change in custody and directed that Dr. Edwin Rosenberg, a forensic psychologist, be appointed to perform the relocation evaluation pursuant to the twelve Baures factors. See Baures v. Lewis, 167 N.J. 91 (2001). Dr. Rosenberg's August 26, 2006 report, which applied the Baures standard, recommended that mother be permitted to move to Massachusetts with the children when the school year ended in June 2007.
Father then retained his own clinical psychologist, Dr. Amie Wolf-Mehlman, who, according to father's charge to her, evaluated the issues on a best interests standard based on the assumption there was de facto shared physical custody and, alternatively, according to the twelve Baures criteria. In her December 27, 2006 report, Dr. Wolf-Mehlman recommended that father be PPR and recommended against the relocation. For the next several months, discovery continued and the deposition of the parties and both experts were taken.
About a month before the relocation hearing was to commence on April 16, 2007, father filed a "motion in limine," seeking a determination as a matter of law that the best interests (change in custody) standard should be applied as opposed to the Baures relocation standard previously determined by the court to be the law of the case. Mother, of course, opposed the motion. The court heard oral argument on April 5, 2007, and denied father's application in a written order and statement of reasons read to the parties on the record on April 12, 2007. The court denied father's request for a stay of the hearing by order of May 2, 2007.
Father then sought leave to appeal the court's April 12, 2007 order. On May 2, 2007, the trial court submitted a letter to the Appellate Division supplementing its April 12, 2007 oral decision, pursuant to Rule 2:5-6(c). Father then filed an emergent application with the Appellate Division requesting a stay of the removal hearing, which we denied by order of May 10, 2007.
The plenary hearing was conducted over five days. On June 13, 2007, the court denied mother's motion to relocate in a written decision and order of that date. Mother appealed the denial of her motion to relocate. Father withdrew his motion for leave to appeal the April 12, 2007 interlocutory order and challenged the order in his cross-appeal.
Mother raises the following arguments on appeal:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING DEFENDANT'S MOTION TO RELOCATE WITH THE MINOR CHILDREN TO THE COMMONWEALTH OF MASSACHUSETTS.
A. The Findings of Fact and Legal Conclusions of the Trial Judge are Without Sufficient Basis to Support the Trial Court's Decision.
1. The Trial Court Failed to Properly Analyze and Apply the "Good Faith" Prong of the Baures' Test and the Trial Court's Finding That the Defendant's Reasons for Relocation were not "valid" is Against the Weight of the Evidence.
2. The Trial Court Erred in Giving More Weight to the Plaintiff's Expert and Simultaneously Discounting or Ignoring the Court Appointed Expert as to Defendant's Emotional Stability and Personality Traits.
a. Trial Court's reliance on inadmissible hearsay evidence was error.
b. Trial Court's mistakes of fact and misconstruction of Dr. Rosenberg's report and testimony were error.
c. Dr. Wolf's report and testimony do not support the Trial Court's finding that Defendant is emotionally unstable.
i. Defendant's MCMI-III results do not indicate Personality Disorder or Psychopathology.
ii. Trial Court erred in giving too much weight to the statements of the marriage therapists.
iii. Trial Court failed to properly analyze the Plaintiff's opposition which was against the weight of the evidence and insufficient under Baures and its progeny.
3. The Trial Court's Finding That the Defendant Would be Reluctant to Permit Plaintiff to Have a Meaningful Relationship with the Children upon Relocation Is Against the Weight of the Evidence.
4. The Trial Court Abused its Discretion in Finding That the Plaintiff Does Not Have the Ability to Relocate to New England.
Father argues the following in support of his cross-appeal:
THE TRIAL COURT'S INCORRECT CONCLUSION IN ITS APRIL 12, 2007 ORDER THAT THE BEST INTERESTS STANDARD SHOULD NOT APPLY RESULTED FROM ERRORS OF LAW AND PROCESS.
A. The Trial Court Erroneously Treated Plaintiff's In Limine Motion As A Motion For Reconsideration.
B. The Trial Court Erroneously Concluded That Its January 20, 2006 Order Was Correct.
1. The trial court misconstrued the law concerning de facto shared custody.
2. The trial court erroneously rendered summary conclusions on the basis of competing certifications, without the benefit of a plenary hearing.
C. Plaintiff's Motion In Limine Should Have Been Granted Because Correct Application of New Jersey Law Compels The Conclusion That The Parties Have De Facto Shared Custody, Or That A Hearing Was Required To Decide The Issue.
D. The Trial Court's Proper Consideration of Plaintiff's Motion In Limine Was Also Hampered By Its Confusion About the Function Of Experts Generally.
E. The Trial Court Erroneously Concluded, Again Without Benefit Of A Hearing, That As A Matter Of Law, Shea v. Shea, 384 N.J. Super. 266 (Ch. Div. 2005), Was Not Applicable To The Present Case.
We first recite the law on relocation, which is well established, in order to put the facts of this case into context. Because the children are natives of New Jersey, judicial approval was required to authorize their relocation to another state. See N.J.S.A. 9:2-2. The initial question to be resolved on a removal application is the "extant status of custody of the parties' children." Barblock v. Barblock, 383 N.J. Super. 114, 121 (App. Div. 2006). If the custody situation is a "rare de facto 'shared parenting' arrangement, one in which each parent essentially performs an equal caretaking role," the court analyzes the removal application under the stricter change-of-custody test of O'Connor v. O'Connor, 349 N.J. Super. 381, 399-400 (App. Div. 2002). Barblock, supra, 383 N.J. Super. at 122. Under that standard, "the party seeking the change in the custodial relationship must demonstrate that the best interests of the child[ren] would be better served by residential custody being vested primarily with the relocating parent." O'Connor, supra, 349 N.J. Super. at 398. See also Chen v. Heller, 334 N.J. Super. 361, 380-81 (App. Div. 2000).
If, conversely, the physical custodial relationship among the parents is such that one parent serves as the primary caretaker and the other parent the secondary caretaker, then the custodial parent's request to relocate the children is governed by the two-part test of Baures. Barblock, supra, 383 N.J. Super. at 121; O'Connor, supra, 349 N.J. Super. at 385. Baures requires that removal be granted where the preponderance of the credible evidence demonstrates the custodial parent has a good faith reason for the move and the move will not be inimical to the children's interests, i.e., they will not suffer from it.
Baures, supra, 167 N.J. at 118, 122; Barblock, supra, 383 N.J. Super. at 121.
In describing the template for a removal case, Justice Long noted that it is "entirely different from an initial custody determination," in which "ultimate judgment is squarely dependent on what is in the child's best interests." Baures, supra, 167 N.J. at 115. In a removal case, however, "the parents' interests take on importance" with "special respect" being accorded the "liberty interests of the custodial parent to seek happiness and fulfillment because that parent's happiness and fulfillment enure to the child's benefit in the new family unit." Ibid. Social science research has uniformly confirmed, and our cases have consistently followed the general principle that "what is good for the custodial parent is good for the child." Id. at l06. See also McCoy v. McCoy, 336 N.J. Super. l72, 181 (App. Div. 2001). The cases also "underscore the importance of the child's relationship with the non-custodial parent and require a visitation schedule sufficient to support and nurture that relationship." Baures, supra, 167 N.J. at ll6.
With these principles in mind, the Court in Baures enumerated the following twelve factors that are relevant to a trial court's assessment of a relocation application:
(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.]
Not all factors are given equal weight, nor will all be relevant in every case. Id. at 117.
The Court further explained that the party seeking to relocate the children has the initial burden to "produce evidence to establish prima facie that (1) there is a good faith reason for the move, and (2) that the move will not be inimical to the child's interests. Included within that prima facie case should be a visitation proposal." Id. at 118. Noting that the initial burden was "not a particularly onerous one," the Court suggested it would be met, for example, by a custodial parent who shows that she is seeking to move closer to a large extended family to help her raise her children, that the children will have at least the equivalent "educational, health and leisure opportunities" as in New Jersey, and that she has proposed a visitation schedule that will allow the children to maintain their relationship with the non-custodial parent. Ibid.
The non-custodial parent must then produce evidence opposing the move as either not in good faith or inimical to the children's interest. Id. at ll9. Suggested examples include: challenging the move as "pretextual" and showing the custodial parent's past actions "reveal a desire to stymie [his] relationship with the child[ren], thus bearing on good faith"; offering proof that the move will take the children "away from a large extended family that is a mainstay in the child[ren]'s [lives]"; and proffering that "neither relocation nor reasonable visitation is possible," which will cause the children to suffer. Ibid.
The Court recognized, however, that "alterations in the visitation scheme when one party moves are inevitable and acceptable." Id. at 117. The Court thus cautioned that "[w]here visitation is the issue, in order to defeat the custodial parent's proofs, the burden is on the non-custodial parent to produce evidence, not just that the visitation will change, but that the change will negatively affect the child[ren]." Id. at 119.
At the time of trial in May 2007, the parties had been separated for almost three years and divorced for almost two of those years. Their two daughters were eight-and-one-half and six years old, and in second grade and kindergarten, respectively, in the Montessori school system.
Father began his career in freelance film production, and beginning in mid-1999, worked in internet advertising. In the summer of 2003, he and a friend started a website for realtors called Agentmaster, which merged into the Bean Group in late 2005, where he was one of four partners. There were sales offices in Vermont and New Hampshire. Father worked alone in a small office in New Jersey with a territory serving the mid- Atlantic region. He described his day-to-day responsibilities as typing, sending emails and making phone calls. He testified he would be unable to relocate to the New England headquarters.
The paternal grandparents live about forty minutes away from Madison and, according to father's testimony, the girls saw their grandfather about once a week and their grandmother about once a month. Their two aunts and cousins, with whom they are very close, live about ten minutes away from them. Father has another sister who lives in Pennsylvania about an hour away, who has two children, with whom the girls also have a close relationship.
Mother began working as an attorney development supervisor at Skadden Arps in New York in 1997. She took maternity leave following the birth of their oldest daughter in November 1998, then returned there part-time for about five months due to the family's financial situation. Over the next few years, mother mostly stayed home with the children (their next daughter having been born in June 2001) doing some consulting at Skadden and other work from the house. Mother testified that she returned to Skadden three days a week in August 2003 for financial reasons (one of which days she worked from home, according to father), which she increased to four days a week in order to obtain benefits after father moved out in August 2004. Mother first began using the services of an au pair in July 2005. At the time of trial, mother was working full-time at Skadden, which she explained was a financial necessity.
In July 2005, mother began dating then forty-eight-year-old James Mambro, a resident of Boston, Massachusetts who she met on the internet. The relationship flourished quickly, with mother and children making frequent trips to Boston to visit her family and Mambro and, in December 2005, mother became engaged to him.*fn1
Mambro runs a successful advertising agency and thus mother would not need to work for income purposes. Mother testified that she currently did not have that option and emphasized that relocating to Massachusetts and marrying Mambro would have a tremendous positive impact because it would enable her to be around and available to the girls as often as they needed. Thus, mother's primary reasons for seeking to relocate to Massachusetts with the children were to be closer to her extended family and support system, to marry Mambro, and to resume being a stay-at-home mother.
At trial, mother described the currently fifty-year-old Mambro as a "good solid man" who was "straightforward, honest and kind." She also noted he was supportive of his former wife, was involved with his four children and cared for his ninety-year-old mother who lived in Rhode Island. She related that in the beginning her older daughter was standoffish, but that the children are now very comfortable with him. Mother stated that the children call him "Jamie" and that he has never interfered with father's relationship with the girls and has no intention of doing so in the future.
Mambro echoed that representation, testifying he was "there to support the decisions" the parties make, the children see him "as obviously somebody that loves their Mom" and they have an emotional attachment but he does not "play Dad." He believes the children see him as "a friend[,] [s]omebody they can confide in[,] [s]omebody they can trust[,] [s]omebody that makes them laugh[,] [s]omebody that does things with them. . . . [J]ust, you know, [a] normal close relationship." Mambro was adamant that he never interfered with father's ability to spend time with his children and would encourage the relationship if mother were able to relocate to Massachusetts with the children.
The maternal grandparents also testified at trial. Susan Leary testified that she always had a wonderful relationship with her daughter. She related that all the maternal aunts, uncles, and cousins live near her and her husband in the Boston area and that they enjoy a very close family relationship. Mrs. Leary testified that prior to the divorce, the parties and children always visited on a regular basis and that the girls were extremely close to their cousins. She described Mambro, who she had met eight to ten times, as caring deeply for her daughter and very good to the girls. Her observations of his relationship with her daughter were: "loving, supportive, joyful" and "[h]e is very supportive of her." Her observation of Mambro with her grandchildren was:
He's kind to them. He's caring to them. He plays with them. He obviously cares about them from what I can see. . . .
He includes them when they come into our adult conversations. He brings his dog out to my house for them to play with, or they play with the dog when they're at his house.
Joseph Leary's comments were similar. He was impressed that Mambro, who had been divorced for fifteen or sixteen years, remained close with his children. In observing his daughter with Mambro, he found that Mambro displayed "maturity and sensitivity" and also treated the girls "very, very well." Mr. Leary expressed his concern that he wanted to make certain Mambro was a "suitable man" to be in the presence of his grandchildren on a daily basis and was satisfied that he was such a man, elaborating that "[h]e's kind[,] [h]e brings them gifts[,] [h]e's patient [and] [h]e's all the things that you'd expect . . . in a husband." To their credit, both Mr. and Mrs. Leary unquestionably stated that their former son-in-law was a good father who cared for their daughter.
Mother testified that she did not have a support system in New Jersey and explained that having to go back to work left her less time to network with the mothers than if she were still at home. She related that she had one friend in New Jersey but no relatives. Mother also testified that she no longer had any relationship with father's family, noting they ceased communication with her after he moved out. She expressed a strong desire to relocate near her extended family and indicated she understood the importance of her daughters continuing to maintain their relationship with their father and paternal relatives.
Mother proposed an extensive parenting plan if she were allowed to relocate, similar to that proposed by Dr. Rosenberg. Father would continue to have alternate weekends with the girls, with one of the weekends taking place in New Jersey and the other in Massachusetts. For the New Jersey weekend, mother proposed to meet father halfway. She also suggested that father's weekends in New Jersey, if possible, encompass Monday holidays. Mother also offered him February and April school vacations and six weeks in the summer, along with flexible holidays. Mother further testified the girls would have a telephone and a computer with a webcam available to them so they would be able to talk to and email their father and continue to have a quality relationship with him, which she believed was "incredibly important." Mother represented that she never disparaged the father at all in the presence of the children and continued to call him "daddy" even though he referred to her as "your mother." She also testified that she continued to try to include father in their lives, for example, when she invited him and his extended family to their daughter's First Communion that year, informing him it would mean alot to their daughter to have her family all together, but he refused and said they would not come.
Both experts interviewed the parties, the children and Mambro, and observed each of the parties with the children. They also reviewed relevant records and conferred with collateral sources, including two therapists who the parties saw at times from 2000 to 2004, Ceil Berlin and Dr. Arlene Gellman. Additionally, Dr. Rosenberg administered psychological tests to the parties and Mambro, which results were reviewed by Dr. Wolf-Melman.
Applying the Baures removal standards, Dr. Rosenberg concluded that mother should be permitted to relocate with the children to Massachusetts. Dr. Rosenberg was of the opinion that mother was sincere in her statements to him about the reasons for wanting to relocate and found those reasons to be good faith and valid ones.
Dr. Rosenberg stated that mother expressed a need and desire to be closer to her extended family and to spend more time with the children, which would be accomplished by her move to Massachusetts and marriage to Mambro. Dr. Rosenberg was also of the opinion that the girls would benefit from having their mother home after school.
Dr. Rosenberg testified, and elaborated in greater detail in his report, about the results of the psychological tests. With regard to the Minnesota Multiphase Personality Inventory-2 (MMPI-2), Dr. Rosenberg found both parties to be self-favorable in their responses and concluded the test results did not suggest that either party was suffering from any serious psychological disturbance or anything to indicate that either would not have the capacity to function effectively as a parent. Dr. Rosenberg did not find the results of the Million Clinical Multiaxial Inventory-III (MCMI-III) test to be valid as to either party, noting their approach was "quite defensive" and they presented themselves in "an overly-favorable light by not acknowledging any personal shortcomings." Accordingly, the expert disregarded the test results as part of his evaluation.
He did note, however, that the results of the psychological test did not support father's notion that mother was emotionally unstable and the children would be "at risk" if they resided with their mother in Massachusetts and did not have father as the stabilizing influence in their life on a regular basis. Dr. Rosenberg further explained that he did not give much credence to the assessments of the therapists who had not seen mother for several years and saw her only in a situation where her "emotional instability" may have been a reaction to and function of an unhappy marriage. Moreover, those therapists continued to maintain a professional relationship with father. Additionally, neither therapist had ever met the children or observed mother interacting with the children.
Dr. Rosenberg testified at length about the parties' relationships with one another and their roles and interaction with the children. He acknowledged that father spent a significant amount of time with the children and had a strong bond with them. The psychologist further testified he "got a sense" from mother that she wanted father to continue to be part of the lives of the children, which she "indicated verbally," she "presented a parenting plan which she believed would affect that," and her conduct encouraged the relationship. The court-appointed expert concluded that mother would not impede visitation and would support and encourage a relationship between the girls and their father.
Dr. Rosenberg acknowledged that the relocation would clearly be a change for father, but he was satisfied the parenting plan would allow father and the children to continue to bond. The psychologist explained:
I felt that the relationship that Mr. Morgan enjoys with his children was -- was significant and important, and I felt that -- that they had -- they had had a sufficient amount of time to bond, and to develop the attachment that's required that would withstand the move of five -- five hours away -- 250 miles.
And I also believe that they -- a parenting schedule could be put in effect that would maintain that bond. It would certainly change the parenting time, obviously, but it would not shatter or destroy the -- the bond and the relationship that he has with his children. So, I felt that under those conditions, one, it would be difficult certainly to move for the children and for their adjustment with --with their father, it would be something that they could do.
Dr. Wolf-Mehlman also concluded that mother's desire to return to her home state and her extended family there, as well as accepting a marriage proposal from a man there, all constituted good faith reasons for wanting to relocate to Massachusetts. Similar to Dr. Rosenberg, father's expert found no psychological pathology or personality disorder in either of the parties or Mambro. Dr. Wolf-Mehlman, however, placed significant reliance on the MCMI-III results as to mother, reporting that a non-testifying witness, Dr. Dyer, purportedly an authority in the field, found the test to be valid as to her. Dr. Wolf-Mehlman testified about mother's elevated score (94) in the clinical personality pattern of "compulsivity," noting that anything above 85 was indicative of a problem. The psychologist differentiated, however, between "personality traits and tendencies" and "a disorder," noting she was "cautious about saying that there's a [compulsive personality] disorder." Father's expert also relied on the therapists' assessments of mother and their recommendations against relocation in making her recommendation, noting, for example, their reference to mother as "emotional" and "angry." Dr. Wolf-Mehlman testified that "another piece of the puzzle . . . of impulsive choices" was mother's quick relationship with "a man who's ten years her senior, with . . . four children of his own, granted some of them are older, but they're still in his life."
With reference to Baures factor number six, Dr. Wolf-Mehlman opined that no viable visitation and communication schedule could be developed upon relocation that would allow father to maintain a "full and continuous relationship" with the children. She explained that he spent considerable time with the girls from when they were young, was very involved with their activities and his personality was very "soothing" to them in contrast to that of mother. Moreover, there would be logistical and weather problems with the weekend visitation commutes. Additionally, there would be the "question mark" of the changes in the girls' lives occasioned by the move and mother's remarriage.
In a written opinion, the court denied relocation. The judge made the following findings respecting the pertinent Baures factors:
(1) The reasons given for the move.
Both experts stated their view that Kristin's reasons are valid, that she loves Jamie, wants to be close to her family, and will be able to spend more time with the children. Only Paul doubts her stated reasons. . . .
The court has doubts about the real reasons for this move. . . . Kristin's intense pursuit of this relationship [with Jamie] puts one in mind of her pursuit of Paul at the outset of their relationship. Jamie is ten years older than Kristin and a divorced father of four children, the youngest of whom is l4. Although the court acknowledges that the relationship has endured for almost two years, this period has hardly been normal. It can be expected that Kristin's interest in the relationship would last as long as she is locked in this struggle with Paul. She does not live with Jamie and their lives have not become routine.
Second, Kristin's relationship with her mother has been strained. She told Dr. Rosenberg that both she and her mother "'have strong opinions and are more alike than not.'" This results in conflict. Kristin does not feel understood by her mother, whose nervousness, Kristin said, "'doesn't help my level of anxiety.'" The senior Ms. Leary (Susan) testified at trial. She looks just like her daughter and the court perceives many similarities between the two. Susan testified that she inquired of Kristin about sleeping arrangements when she went to visit Jamie with the children for the weekend. That Susan would question her thirty-nine-year-old daughter about such personal matters suggests that she is domineering and intrusive. Kristin's personality is in the same pattern. Kristin's father, who also testified, appears to be the calming influence in the family, just as Paul is in his.
Based on her history and her enormous capacity for impulsive behavior, the court concludes that the reasons Kristin proffers for the move based on her relationship with Jamie and her family are not valid. Although Kristin has not set out to deliberately concoct a story and a plan to escape Paul and New Jersey, her personality trait of compulsiveness has, in the court's view, driven her to this end.
(2) The reasons given for the opposition.
The court finds Paul's opposition as more grounded in reality than Kristin's reasons for the move. His point is that the girls will suffer if exposed to their emotionally unstable mother without his proximity and virtually daily presence to offset the impact of her volatility. The court concurs.
Kristin works hard at being a good mother. She loves her children. The court acknowledges her attention to the girls' physical well-being. However, Kristin is either at work or in transit about twelve hours per day. . . .
. . . [Paul] sees [the girls] almost every day, despite the parenting time agreement (although the court stands by its determination that there is not de facto shared parenting here for all the reasons it previously expressed). Paul's presence is extremely important to the girl's emotional welfare. He is a calming, stable, loving presence. Kristin is a potentially disruptive, explosive, yet loving presence. Kristin can engage in fits of rage, sometimes at the girls. [The older daughter's] acting out as a two-year-old was likely a result of Kristin's inability to cope with the little girl and her baby sister. . . . She has called Paul to come to her house to assist her when she was unable to control the children.
The court does not here determine that Kristin is an unfit mother. She loves her children and does much for them. . . . The children in this case benefit in unusual ways from the contrasting personalities of their parents. . . . However, exposed primarily only to Kristin, the court concludes that they will not do as well as they do now emotionally. Paul's reasons for opposing the move are valid.
(3) The past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting or opposing the move.
Paul acknowledges that Kristin has been flexible in affording him time with the girls. . . .
. . . . . . . Kristin is incapable of empathizing with Paul's position or accepting any responsibility for the demise of a twelve-year marriage. It will be easy for Kristin to sit in Boston and encourage Paul to spend time with the children. She can afford to be magnanimous from a distance. But, based on her history and her current anger, the court concludes that she will be reluctant to permit Paul to have a meaningful say in the girls' lives.
(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 children.
Here the court relies on Dr. Wolf's testimony that, in this particular situation, Paul's relationship with the girls will not be "full and continuous." He is simply too involved with his children. He regularly attends school events. . . In short, he is deeply involved in a way that it would not be tenable to duplicate in Massachusetts.
More importantly, this relationship, as noted above, is crucial for the girls in light of their mother's emotional volatility. Paul brings balance that compensates for Kristin's tension. His emotional support for the girls is a soothing influence next to their mother's lability.
The need for Paul's physical presence in the girls' lives overcomes the availability of telephones, e-mail and web cameras. Such technology will not permit this father to maintain the extraordinary relationship he has with his daughters. The relationship would not be "full" because he would not see the girls nearly as often and would not be the stable presence they need. The relationship would not be "continuous" because the true measure of what Paul does would be destroyed by the relatively little time he would spend with the girls and prevent him from giving them what they need from him.
It was on this point that the experts primarily disagreed. The court affords Dr. Wolf's testimony more weight because of her interpretation of the MCMI-III and because she relied more on the observations of Dr. Gellman and Ms. [Berlin], therapists who treated Kristin for a total of nearly two years. Although they did not see the children, they saw and spoke with Kristin and analyzed her personality traits. The court concurs with Dr. Wolf in concluding that their conclusions are reasonably reliable. The court concludes that Dr. Rosenberg did not have sufficient basis to conclude that Kristin has achieved emotional stability now that she is out of an unhappy marriage. Her pursuit of Jamie does not indicate emotional stability.
In this case, the court concludes that one cannot draw the conclusion that Paul's relationship with [the girls] can be fully sustained through a new visitation scheme if [they] go to Massachusetts. What follows is that the move would be inimical to the girls' interests. Kristin is simply too emotionally unstable, based on her history and her test results, to take these children away from their father to a distant state. Although Kristin is a fit parent, the point is more subtle. [The girls] are thriving, in spite of the divorce, as they have close relationships with both of their parents, whose personalities complement one another. In this dynamic, Paul's presence on an almost daily basis is essential to their well-being. The court is concerned enough as to what will happen in Massachusetts to determine that this move should not occur. Were it to take place, the court believes that the girls would suffer emotional damage because they would lose the calming, stable presence of their father.
"Family Part judges are frequently called upon to make difficult and sensitive decisions regarding the safety and well-being of children. Because of their special expertise in family matters, we do not second-guess their findings and the exercise of their sound discretion." Hand v. Hand, 39l N.J. Super. 102, 111 (App. Div. 2007). Accordingly, we accord deference to the factfinding and credibility assessments of a family court judge. Cesare v. Cesare, 154 N.J. 394, 413 (l998). Nevertheless, the trial judge's decision "is not entitled to any special deference where it rests upon a determination as to worth, plausibility, consistency or other tangible considerations apparent from the face of the record with respect to which he [or she] is no more peculiarly situated to decide than the appellate court." Dolson v. Anastasia, 55 N.J. 2, 7 (l969). We may disagree and disturb a trial judge's findings and legal conclusions when "'they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, l54 N.J. at 412 (quoting Rova Farms Resort, Inc. v Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
While the court appears to consider the applicable relocation case law with respect to the facts of this case, specifically by setting forth and discussing the Baures factors, a closer look reveals that the court misapplied Baures and its progeny in denying mother's motion. First of all, the trial court failed to properly analyze and apply the "good faith" prong of the Baures test and, secondly, its finding that mother's reasons for relocation were not "valid" is not borne out by the record.
As previously stated, a custodial parent who is seeking to relocate with the children must first prove a "good faith" reason for the move, which our Supreme Court has held not to be a particularly onerous burden. Baures, supra, 167 N.J. at 118. The movant need not show an advantage; any sincere or good faith reason for the move is sufficient. Holder v. Polanski, 111 N.J. 344, 352-53 (1988); McCoy, supra, 336 N.J. Super. at 179. Moving closer to extended family for support in raising children is reason alone to satisfy the question of whether the application is being made in good faith. Baures, supra, 167 N.J. at 118; Barblock, supra, 383 N.J. Super. at 126. Other good faith reasons for wanting to move that our courts have held to be sufficient include a desire to pursue a relationship, remarry, or obtain an employment advantage that enables the custodial parent to spend more time with the children. Baures, supra, 167 N.J. at 96; McCoy, supra, 336 N.J. Super. at 179. Moreover, "[i]n order to reach a determination that there is an absence of good faith on the part of the custodial parent, there necessarily must be a finding that the motivation behind the move is inspired by something other than good faith," such as thwarting the non-custodial parent's visitation rights. McCoy, supra, 336 N.J. Super. at 179; see also Holder, supra, 111 N.J. at 353.
Here, despite Baures' clarity, the judge did not even mention good or bad faith during his discussion of the reasons given for the move. Instead, he mischaracterized the test and assessed whether mother's reasons were "valid," determining that the reasons mother provided for the move were "not valid." According to Black's Law Dictionary 701 (7th ed. 1999), "good faith" is defined, in pertinent part, as "[a] state of mind consisting in . . . honesty in belief or purpose." In contrast, "valid" is defined as "[l]egally sufficient; binding" or "meritorious." Id. at 1548. These terms have different meanings and are not interchangeable. Thus, the trial judge disregarded the established "good faith" test of Baures in favor of a new standard, thereby conducting a flawed analysis of the first prong and casting doubt on the integrity of his overall analysis of the case.
Even assuming the judge intended the term "valid" to be synonymous with "good faith," he, nonetheless, erred in concluding that mother did not meet her burden of proof on this initial prong. There is no doubt the record supports a finding that mother showed a good faith reason for relocating to Massachusetts. It is undisputed mother has strong ties to Massachusetts -- she was raised there, attended Boston College, worked in Boston after graduation, has kept close ties with her parents, siblings and "tremendously large group of cousins" who live there, and even speaks with a Boston accent. Father acknowledged that the parties and children traveled often to Massachusetts to visit their relatives and that the children had a strong relationship with their maternal grandparents. Being in a supportive, comfortable environment for mother is particularly important at this time, in the aftermath of divorce and raising two small children. Stress on the custodial parent, such as "loneliness and discouragement," has negative effects on the children. Baures, supra, 167 N.J. at 106. The testimony elicited from mother strongly suggests she is lonely in New Jersey with no family, friends or support system, and no longer has a relationship with father's sister Joanna, who had been friends with her for thirteen years. The close contact between mother and her family will not only benefit her well-being but will also be beneficial to the children who will enjoy fostering the close relationships they already share with their maternal relatives. The record clearly reflects a closeness between mother and her parents and it would not be a normal relationship if there were not "mother/daughter" friction at times.
The pursuit of a better quality of life has also been accepted by our courts as a good faith reason for seeking relocation. See McCoy, supra, 336 N.J. Super. at 179-80. At the time of trial in May 2007, mother and Mambro had been dating for almost two years and maintained a healthy, stable relationship as testified to by mother, Mambro, her parents, and both experts. Mambro testified he earned about $400,000 annually and thus would be able to support mother and the two girls without her having to continue working. Mother, therefore, would also have the added benefit of the ability to spend more time with the girls and would not have some of the financial pressures and stress that adversely affected the parties' marriage. "[N]ewly formed post-divorce households" can produce "positive outcome[s]" for the parties' children. Baures, supra, 167 N.J. at 106.
Both experts agreed that mother had good faith reasons for wanting to move back to Massachusetts. Moreover, when father was questioned on cross-examination if he believed that mother's application to relocate so she could remarry and spend more time with the children was made in bad faith, he responded, "I believe she believes all those in good faith." The record was devoid of testimony or evidence that mother was seeking to relocate to undermine or interfere with father's parenting time. Rather, father specifically testified that she was not trying to take the children away from him or destroy his relationship with the children. Nothing at trial was adduced to show that mother's desire to move was pretextual or malicious and, in fact, the judge found she had "not set out to deliberately concoct a story and a plan to escape Paul and New Jersey." Critically, the judge also failed to make any findings that mother's reasons for the move were motivated by a desire to harm father or interfere with his relationship with their children. Instead, contrary to everyone's testimony, the judge found mother was seeking to relocate essentially because of her "personality trait of compulsiveness."
This finding of compulsivity and emotional instability on the part of mother becomes a theme throughout the balance of the court's analysis of the Baures factors and the basis for its conclusion that the move would be inimical to the girls' interests. According to the judge, "Kristin is simply too emotionally unstable, based on her history and her test results, to take these children away from their father [who he concludes is a calming, stable presence] to a distant state." The premise of "emotional instability" is not supported by the record, nor is the conclusion of resulting harm.
Father presented the case so that mother's emotional state was "the principal issue at trial." His expressed opposition to the move, as reflected in the court's opinion, was that the girls would "suffer if exposed to their emotionally unstable mother without his proximity and virtually daily presence to offset the impact of her volatility." Neither of the testifying experts found mother to have any psychological pathology or personality disorders nor indicated that any of the four psychological tests reflected any psychological pathology or personality disorders in mother or Mambro. Dr. Wolf-Mehlman, however, created a notion of mother's emotional instability citing inadmissible hearsay from Dr. Dyer; biased, stale and inappropriate comments from the parties' former therapists, both of whom continued to treat father; and limited, unsupported evidence provided by her client. The trial court gave greater weight to Dr. Wolf-Mehlman on this point and ultimately discounted the recommendation of the independent expert, Dr. Rosenberg, that mother be permitted to relocate. Although the trial court clearly has the discretion to assess the expert testimony, we are satisfied the record does not support the deference to father's expert. See Johnson v. Salem Corp., 97 N.J. 78, 9l (l984) ("[t]he weight to which an expert opinion is entitled can rise no higher than the facts and reasoning upon which that opinion is predicated"). Moreover, Dr. Wolf-Mehlman's report and testimony do not support the court's finding that mother is unstable.
In this case, the point of contention between the experts was whether a single elevated score on one of the personality pattern scales on mother's MCMI-III*fn2 test made the test valid. The experts discussed mother's scores on three of the personality pattern scales -- histrionic, narcissistic and compulsive, with the last one being elevated. Dr. Rosenberg, the court-appointed expert, opined that these tests for both parties were only "technically valid." He explained that while the parties' scores on the modifying indices did not reach the cut-off scores for making the tests technically invalid, their respective zeros on the debasement scales (meaning they presented themselves as having no flaws), coupled with high scores on the desirability scales (meaning they put their best foot forward), did not provide interpretable results. He further testified that he routinely only gets interpretable data from this test ten percent of the time. The expert thus placed no reliance on this test in his assessment of mother's personality.
Dr. Rosenberg testified, and mother does not dispute, that she is more emotionally expressive and that the tests indicate she has a more expressive personality. However, both experts agreed that personality "traits and features" are not synonymous with a personality disorder. As Dr. Rosenberg testified, "[w]e all have personalities and . . . most of us are okay with our personalities even though we have different personalities, doesn't mean we have any . . . personality deficits or . . . disorders that would make our personalities pathological."
Although much was made by Dr. Wolf-Mehlman about this test and its single elevated scale, Dr. Rosenberg explained:
[I]t's very hard to generalize from psychological test results to behavior. That's a very long inferential leap. . . .
[P]sychological test results are indications of people's personality, whether [that] personality gets translated into that type of behavior, you can't tell from tests.
He further noted that the experts agreed that none of the tests are "stand alone instruments," which is to say the test results cannot be considered in a vacuum, but must be considered with clinical interviews, review of records and analysis of past history.
Dr. Wolf-Mehlman reported that she would concur with Dr. Rosenberg's "psychological assessment" of mother. Notably, in his assessment of mother, Dr. Rosenberg had stated that, "[t]he results of both objective and projective psychological tests indicate that [mother] does not suffer from significant emotional problems." To further confirm the experts' concurrence with regard to a lack of a personality or psychological disorder on mother's part, when Dr. Wolf-Mehlman was asked on direct examination about compulsive personality disorder in mother, as previously noted, she stated, "[a]gain, I'm cautious about saying that there's a disorder, but there's personality traits and tendencies." Moreover, on cross- examination, father's expert found that neither mother nor Mambro had "psychopathology in terms of an actual disorder."
In reliance upon consultation with Dr. Dyer, an expert in the use of the MCMI-III test, Dr. Wolf-Mehlman concluded that mother's MCMI-III test results were valid. Her report stated as follows:
However, with regard to the use of the MCMI-3, according to Dr. Dyer, Kristin's profile was valid given the fact that, in spite of her high elevations on the validity scale, her scores on measures of personality disorder were so elevated that they were considered interpretable. He explains that she obtained a score of 94 on compulsivity which, according to him, clearly indicates some disorder. He described this elevation as indicative of cognitive constriction and rigid thinking. He stated that she is likely attuned to hierarchical relationships and deferential to authority and demanding of those who she perceives to be under her. He added that on the facets scales, her self-image scale was quite low which corroborates that she does have some form of a disorder. The scale elevation on histrionic personality disorder, which was 76, he described as complementary to the elevation on compulsivity. He stated that she likely can be ingratiating and knows what to say to people to make an impression. However, there may likely be some over-controlled hostility in which she says yes until her tolerance fails and then she snaps at people.*fn3
The court sustained the hearsay objection of mother's counsel and precluded Dr. Wolf-Mehlman from testifying as to anything Dr. Dyer told her during their consultation. Dr. Wolf-Mehlman thus testified that she would be cautious about interpreting a score under 85, noting that mother's scores on the histrionic and narcissistic scales were 76 and 74, respectively. She was of the opinion, however, that mother's elevated score of 94 on the compulsivity scale could not be discounted as a byproduct of mother's elevated desirability score and was indicative of a problem. The expert's sole description of "the problem," however, was that although there might be "at a minimum, a problem with compulsivity and with rigid thinking [and] [r]igid expectations of others[,]" "to some extent, being compulsive can be a good thing," as it evidences a concern with "rule following" and carrying out her job and other responsibilities, echoing Dr. Rosenberg's thoughts on the subject that many successful, well-adjusted people are compulsive. When questioned further on direct examination, Dr. Wolf-Mehlman still refused to diagnose Compulsive Personality Disorder, instead focusing on the "personality traits and tendencies."
Dr. Wolf-Mehlman was permitted to testify that her consultation with Dr. Dyer confirmed her opinion that the test results were valid, but not about Dr. Dyer's specific findings as conveyed to her. We thus find error in the judge's verbatim quotation of and reliance upon such findings, stating in his opinion:
Dr. Dyer confirmed Dr. Wolf's view that Kristin's scores on the MCMI-III were valid because, in spite of high scores on the validity scale (the higher the validity score, the less reliable the result), her scores on measures of personality disorders were so high that they were usable. For example, her score of 94 on compulsivity indicated a disorder marked by cognitive constriction and rigid thinking. Kristin's self-image scale was "quite low," corroborating some form of disorder. The test also supports the view that Kristin is histrionic.
The court improperly relied on this inadmissible hearsay evidence in support of its decision that mother was emotionally unstable and in denying relocation. The court's explanatory comment that Dr. Wolf-Mehlman's report went into evidence without objection was not legal justification. After the court ruled that Dr. Dyer's testimony could not be presented through Dr. Wolf-Mehlman, the court was obligated to disregard any such references in her report. This is particularly so considering that she did not independently testify to these facts and, more notably, never concluded that mother had any personality disorder or that the MCMI-III test reliably indicated that mother was histrionic.
The court's rationale for affording more weight to Dr. Wolf-Mehlman's testimony on the use of the MCMI-III test was erroneous for similar reasons. The court was noticeably impressed that "she took the time to consult with an expert [Dr. Dyer] to confirm her view" that mother's scores on the test "were so high that they are reliable indicators of a personality disorder," again carrying forward the inadmissible hearsay and inaccurate assumption that Dr. Wolf-Mehlman was of the view mother had a personality disorder. If the court chose to rely on the opinion presented by father's expert's testimony on this issue, the competent, credible evidence would have been limited to her belief that mother had compulsive or histrionic traits.
Instead, in apparent disregard that the results of all four psychological tests converged and confirmed that both parties are free from any psychological disorders and psychopathology, the court chose to rely on Dr. Wolf-Mehlman's "concerns" about mother's emotional instability. Moreover, in contravention of the stated agreement of the experts at trial that no one test should be considered in a vacuum, that is precisely what the court did. It took one elevated score, which both experts agreed did not signify a psychological disorder and, nonetheless, made a finding that mother had a psychological disorder that made her unstable. Such finding is against the weight of the evidence.
The court also misconstrued Dr. Rosenberg's report to inaccurately conclude that mother was emotionally unstable. Based on the following comments and conclusion, it is clear the court found that Dr. Rosenberg made such a determination and was providing justification for the cause of the instability. The court stated, in pertinent part:
Dr. Rosenberg did not rely heavily on the observations of Dr. Gellman or Ms. Berlin because they had not seen Kristin in at least two years and because they had not seen the children. Dr. Rosenberg considered Kristin's emotional instability at the time as "perhaps" caused by an unhappy marriage.
The Court could more readily credit this point if Kristin did not leap into another relationship before she was even divorced. Although the final judgment had not been entered, Kristin knew her relationship with [Paul] was over. It was not unhappiness with him that drove her to pursue a divorced father of four ten years her senior. Dr. Rosenberg's tentativeness on this point ("perhaps" Kristin was unstable because of an unhappy marriage when seeing Ms. Berlin and Dr. Gellman) and Kristin's characteristic compulsiveness with Jamie lead the court to give little weight to Dr. Rosenberg's opinion on this point. There is every reason to believe that Kristin remains emotionally volatile. (Emphasis added).
Dr. Rosenberg's comments were taken completely out of context as is evident from a review of the pertinent section of his report:
Mr. Morgan's other reason for believing that the Court should not allow Ms. Leary to move with the children to Massachusetts is based on his belief that Ms. Leary is emotionally unstable. He believes that the children would be "at risk" if they resided with their mother in Massachusetts and did not have him as a stabilizing influence in their life. This assertion was supported by Dr. Arlene Gellman who had first hand knowledge of Ms. Leary when she treated the couple prior to marital separation. However, the results of the psychological tests that this examiner administered to Ms. Leary do not support the notion that she is emotionally unstable. Perhaps Ms. Leary's "emotional instability" was a reaction to and a function of the marriage that she was in with Mr. Morgan. However, the data collected as part of the current evaluation, which was conducted at a time when Ms. Leary is engaged to be married, and quite happy with the prospect of a new relationship, presents a healthier picture of Ms. Leary. The results of both objective and projective pathological tests indicate that Ms. Leary does not suffer from significant emotional problems. (Emphasis added).
Nowhere in his report, nor in his testimony, does Dr. Rosenberg acknowledge mother to have been, or currently be, emotionally unstable. It is clear the expert was simply relaying father's assessment of his former wife, which father had reported to Dr. Rosenberg and to a marriage therapist who unsuccessfully treated the parties.
We turn now to the significant reliance that Dr. Wolf-Mehlman placed upon the opinions of the marriage therapists and the undue weight given by the trial court to such statements in its finding of emotional instability and denial of relocation. Father admits that the state of their marriage was "poor" when they sought assistance from therapist Berlin around March 2000, and that mother went "reluctantly." Their older daughter was slightly more than a year old at the time. Although the parties had planned for mother to remain at home with her, financial reasons compelled her to return to work three to four days a week for about four months after her maternity leave. She was able to stop working when father began employment in his father's firm. Understandably, this situation placed significant pressure on mother and took its toll on her emotionally. Moreover, resentments began and marital discord plagued the home. The parties pursued couples therapy for about six months, then group therapy at Ms. Berlin's recommendation. Mother stopped attending in September 200l; however, father was still participating as of the trial date.
Ms. Berlin referred the parties to Dr. Gellman, a family therapist who practiced in her suite, around August 2003 when their four-year-old daughter began developing unacceptable behavior. Father testified that she began having terrible tantrums, would be enraged and would hit and throw things, and that mother would hide in the bedroom with their infant daughter to get away from her, and would call him for assistance. Father explained that he would intercede and help but admitted that he was only successful "sometimes" in calming their daughter down. Dr. Gellman never met their daughter or observed her with either parent, but diagnosed her problem as being related to the continuing marital discord and suggested the parties continue to see her for marriage counseling. They continued with couples and individual therapy and in the summer of 2004 they discussed separation with her. Mother testified she did not feel Dr. Gellman was a neutral party -- she had sided with father and supported his decision to separate -- and overall felt the experience with her was "frighteningly assaultive." Therefore, in September 2004, mother terminated her relationship with Dr. Gellman. As with Ms. Berlin, father continued treating with her through trial.
As testified to by both Drs. Rosenberg and Wolf-Mehlman, gathering information from prior treating therapists is a standard and important part of conducting a removal evaluation. The court-appointed expert discounted the observations of the therapists as to their impressions of mother's emotional state based on the time frames and circumstances. Dr. Rosenberg attributed the emotional reactions exhibited by mother to the breakdown of the parties' marriage, commenting that "most people . . . in marital therapy are going to be emotional and reactive to what's going on. They're dealing with . . . highly sensitive and highly explosive information, and . . . exchanges in their therapy sessions."
The court-appointed expert also testified that Ms. Berlin and Dr. Gellman violated the ethical guidelines and standards of practice of the American Psychological Association by offering opinions on a relocation case because they did not observe the parties for that purpose and because of their continuing professional relationship with father. He explained that when Ms. Berlin and Dr. Gellman had contact with the parties they did not focus on or assess the custody or relocation issue, noting:
They might have assessed the patient, but as I indicated and everyone knows, personality and parenting are not necessarily synonymous.
So that unless one assesses parenting, one should not make a recommendation for parenting issues . . . .
He further explained that, as treating therapists of father, they are not making an assessment from an objective perspective.
Dr. Rosenberg further testified it was imperative for an evaluator giving an opinion on relocation in this situation to interview the children, the parties and Mambro and to base a determination on a current assessment, which he did and the therapists did not. As previously discussed, based on his independent review, the court-appointed expert found nothing in mother's personality or in her relationship with Mambro that would cause the children harm if relocated to Massachusetts.
In contrast, Ms. Berlin's and Dr. Gellman's statements about mother's "emotional instability" and strong recommendations against the relocation (Dr. Gellman going so far as to call it a "travesty") were not used simply to corroborate Dr. Wolf-Mehlman's opinion or the court's decision but were, in fact, considered to be dispositive of the issue. See Glowacki v. Underwood Mem'l Hosp., 270 N.J. Super. l, l8 (App. Div. l994) (The intent of N.J.R.E. 703 is to "permit an expert opinion to be corroborated, confirmed or bolstered by hearsay, but not to rely exclusively or primarily on it."). As previously discussed, Dr. Wolf-Mehlman did not make any independent findings of emotional instability.
We are convinced that the primary reliance of father's expert on the therapists' statements and recommendations, and the court's adoption of her opinion in this regard, was error essentially for the reasons articulated by the court-appointed expert. At the time of their discussions with the evaluators, Ms. Berlin had not seen mother for over six years and Dr. Gellman had not seen her for two and one-half years, while both therapists had continued to treat father. Therefore, their assessment of mother was stale, most likely biased and apparently inappropriate under professional standards. Considering father's repetitive use of the phrase "emotionally unstable" to describe his former wife during interviews with Drs. Rosenberg and Wolf-Mehlman and his ongoing relationship with the therapists, there is a strong possibility that he was the initial source of that statement and it was not even a professional assessment by either Ms. Berlin or Dr. Gellman but one they simply echoed. In addition, the court should have given no consideration whatsoever to the therapists' assessments of the parties' personality traits vis-à-vis the children as neither interviewed the children nor observed their interaction with the parties. Finally, on this issue, the record does not support the judge's finding that their older daughter's "acting out" stage was "likely a result of [her mother's] inability to cope with the little girl and her baby sister." Once again, without basis, the judge used mother as a scapegoat, ignoring the fact that there was acknowledged marital discord that contributed to the tension in the household and father himself admitted that he was not always able to calm down their daughter when she threw tantrums. The fact of the matter is that both experts found the girls to be very well-adjusted and free from emotional difficulties, which is a credit to both parents.
Similar unfounded and inappropriate comments were repeated through the court's opinion and pervaded its ultimate determination, most of them pertaining to mother's relationship with Mambro. For example, the court illogically linked mother's involvement in a new relationship, referencing irrelevant factors, with emotional instability. We cannot necessarily fault the court's use of the term "leap" in describing mother's relationship with Mambro that commenced after separation but before divorce. However, that a thirty-nine-year-old woman should date and seek to begin a new relationship about nine months after her husband left her is not an indication of emotional volatility or instability but is a natural progression. More problematic, however, is the court's repetition of Mambro's age, prior marital status and the number of children he has ("a divorced father of four (the youngest is 14) who is l0 years Kristin's senior") and linking it to the notion of emotional instability on the part of mother or the suggestion that it adversely impacts the children. This gives the appearance of a prejudice or predisposition on the part of the judge because not only is such inference unsupported by the record, it is contrary to all of the testimony and evidence presented at trial. The record is undisputed that Mambro not only maintains a close relationship with his former wife and his four children, which is evidence of good character, but that he is "caring and kind" to the girls. Moreover, despite much testimony that Mambro was the one to "pursue" the relationship with mother, the court erroneously attributed the "pursuit" of the relationship to mother as another indication of her compulsivity. The court grudgingly acknowledged that mother's and Mambro's relationship had lasted for almost two years as of the trial date, which we note has now been almost five years. Nonetheless, consistent with its preconceived notion, the court speculated without any basis and contrary to the independent expert's assessment of the relationship as stable, that it would not endure when mother and Mambro began living together.
There is no doubt mother produced more than sufficient evidence to establish prima facie that she had a good faith reason for relocating to Massachusetts and that the move would not be inimical to the girls' best interests, satisfying both prongs of Baures. 167 N.J. at ll8. Mother's proposed parenting schedule, which was similar to that suggested by the court-appointed expert, allowed the girls to maintain their relationship with their non-custodial parent physically as well as emotionally through telephonic, email and webcam communication. See id. at 105 (recognizing the benefit of technological communication in removal cases); Barblock, supra, 383 N.J. Super. at 127 (same).
The court is then obligated to analyze whether the non-custodial parent has produced sufficient evidence opposing the move as not in good faith or inimical to the children's interest. Baures, supra, 167 N.J. at 119. We have already addressed the lack of any challenge to the "good faith" prong. Recognizing that the custodial parent who bears the responsibility for the children "is entitled, to the greatest possible extent, to the same freedom to seek a better life for herself or himself and the children as enjoyed by the non-custodial parent," id. at 110, and that visitation arrangements inevitably will change in any relocation, the Court chose not to make the issue of visitation an independent prong, id. at 117. Instead, the Court placed the burden on the non-custodial parent to produce evidence that the change in visitation would negatively affect the children to defeat the custodial parent's application for relocation. Id. at ll9.
The findings of the trial judge do not suggest that he properly analyzed father's opposition under the appropriate Baures template. Based on our analysis of the facts in light of the applicable case law, we find father's proofs to be insufficient to defeat mother's relocation application. As previously discussed, the court's basic premise that mother is "emotionally unstable" is unfounded, leading to the flawed conclusion that the move is inimical because the relationship between father, the non-custodial parent, and his daughters cannot be fully sustained without allowing him the ability to have regular contact with them. Moreover, the court's rationale that so long as the children are thriving by having constant contact with both parents who have complementary personalities (mother being energetic and father being a calming influence) the children would be harmed by relocation regardless of whatever visitation and communication schedule was established, runs counter to the reality of divorce and freedom of relocation of the custodial parent articulated by Justice Long in Baures.
It is undisputed that father has spent considerable time with his daughters and has a significant and important relationship with them. The physical distance of five hours as opposed to five minutes away will clearly reduce his parenting time and ability to participate in their activities. That inevitable alteration in the visitation scheme, however, is insufficient to defeat mother's relocation application. Father failed to present competent evidence of ensuing harm to the children.
To support its finding of harm, the court again erroneously adopted the position of Dr. Wolf-Mehlman that there was no visitation schedule possible to maintain the "full and continuous" relationship between father and his daughters. First of all, a non-moving parent is not free to reject every visitation schedule without offering one of his own. Id. at 117-l8; McCoy, supra, 336 N.J. Super. at 182. Moreover, Baures, supra, does not require "duplication" of the current parenting arrangement; otherwise, relocation would rarely be granted. 167 N.J. at 117. Rather, Baures requires a communication and visitation plan that "is extensive enough to maintain and nurture the connection between the non-custodial parent and the child[ren]." Id. at ll8. Mother satisfied this requirement by providing ample technological communication options to supplement an extensive visitation plan. Father does not need to be in close proximity or physically present to provide emotional support to the girls or be a "calming influence" on them; he can regularly call them, text them, email them and communicate by webcam in addition to visitation. Moreover, mother's flexible conduct in switching weekends with father to accommodate family functions or other planned activities with the girls and her invitation to him and his family to attend their daughter's First Communion clearly evidences mother's commitment to encourage his relationship with the children. We also note that father has a flexible work schedule that enables him to set his own hours and that the girls are within a reasonable driving distance, not a plane ride away.
As we are satisfied that, by a preponderance of the credible evidence, mother has proved the two prongs of Baures, we reverse the trial court's order denying her relocation application. Mother is permitted to relocate at the end of the June 2010 school year. We remand to the court for the sole purpose of fine tuning the logistics of the visitation and communication schedule consistent with that proposed by Dr. Rosenberg and mother, which shall be accomplished within thirty days. Both experts have remarked on the parties' abilities to communicate with one another. Despite the breakdown of their marriage, it appears the parties have cooperated with one another with regard to parenting time and, for the most part, have fostered one another's relationship with the children. This mature behavior is to the parties' credit. We are confident they will put their children's interests first and continue to work together.
We turn now to father's cross-appeal. Despite the trial court's flawed Baures analysis, we discern no factual, procedural or legal error in the court's rulings that the parties do not have de facto shared custody and that Shea, supra, is inapposite and does not warrant the application of the "best interests" standards to mother's relocation application. 384 N.J. Super. at 274. We affirm substantially for the reasons articulated on the record of January 20, 2006 and April l2, 2007 and set forth in the court's supplemental letter opinion of May 2, 2007. We add the following comments.
Although we may look past labels used by the parties to describe their custodial arrangement, Mamolen v. Mamolen, 346 N.J. Super. 493, 499 (App. Div. 2002), we are satisfied the certifications submitted by the parties and the evidence adduced at trial clearly supported the court's finding that mother is the primary caretaker of the parties' children. The parties fixed this relationship by designating mother as the PPR in their settlement agreement, incorporated into the August 2005 final judgment of divorce. The parenting schedule they established, which the parties began implementing shortly after father moved out in August 2004 and continued through trial, involved alternating weekends from Friday at about 5:30 p.m. until Monday morning when he would drop them off at school, every Tuesday night for dinner, and every Thursday night from about 5:30 p.m. until the following morning when he would drop them off at school. The PSA also provides father with a one-week vacation during the school year and a one-week summer vacation.
In November 2005, father filed a motion for a change of physical custody based on allegations of changed circumstances, seeking to become the PPR, which was denied by the court in January 2006. At that time the court also rejected father's request to evaluate the removal issue according to a best interests analysis and directed the court-appointed expert to perform the evaluation based on the Baures standard. About seven months after Dr. Rosenberg submitted his report recommending relocation and about a month before the relocation hearing was to commence, father filed a motion which, in essence, was a request for reconsideration because he again sought the utilization of the best interests analysis.
As the court noted, father's certifications in support of his motions contained conclusory statements about his involvement with the children with little or no detail as to the time spent or tasks performed. Father failed to make a prima facie showing of changed circumstances, Chen, supra, 334 N.J. Super. at 380, or that he was acting as the primary residential custodian in spite of the language of the parties' PSA, Mamolen, supra, 346 N.J. Super. at 50l, to warrant a plenary hearing.
Joint physical custody, a rare occurrence, has been defined by our Supreme Court as "joint responsibility for minor day-today decisions and the exertion of continuous physical custody by both parents over a child for significant periods of time." Pascale v. Pascale, 140 N.J. 583, 596 (1995). In this situation a child lives "day in and day out with both parents on a rotating basis." Id. at 597. Joint physical custody does not include numerous parenting times with a child; "to constitute joint custody, each parent must exercise joint legal and physical custody over the child." Ibid. In such a shared parenting arrangement, either de facto or de jure, each parent essentially performs an equal caretaking role. See Barblock, supra, 383 N.J. Super. at l22.
According to Pascale, supra, the primary caretaker (custodial parent) and secondary caretaker (non-custodial parent) both have responsibility over the children of divorce, but the primary caretaker has the greater physical and emotional role. 140 N.J. at 598. The Court in Pascale, supra, referenced the "many tasks that make one parent the primary, rather than secondary caretaker," such as: preparing and planning of meals; bathing, grooming, and dressing; purchasing, cleaning and caring for clothes; medical care, including nursing and general trips to physicians; arranging for social interaction among peers; arranging alternative care, i.e., baby-sitting or daycare; putting child to bed at night, attending to child in the middle of the night, and waking child in the morning; disciplining; and educating the child in a religious or cultural manner. [Id. at 598-99.]
In essence, father received his plenary hearing at the trial. He certified on March 22, 2007 that he has "seen" the children anywhere from twenty to twenty-five days a month. Father testified that he participated in several school activities (chaperoned two events, volunteered to be a class parent, was a guest reader once in each of the girl's classes, regularly attended back-to-school night and school conferences) and Adventure Guides (overnight weekend camping trips three or four times a year for fathers and children), attended every one of his daughters' birthday parties and planned one for his older daughter the most recent year, took his daughters to some medical visits over the years, and helped them with their homework when they were with him.
As the court noted in its June l3, 2007 opinion:
Kristin testified that, in the three years before the separation [through the trial date], she was [the children's] primary caretaker. She got them ready for school in the morning, preparing all meals. She investigated schools for them to attend; registered them for school; arranged for music and dance lessons and all other extracurricular activities and lessons; went to "Mommy and Me Classes" at school; arranged play dates; made all doctors' appointments and attended virtually all of them while Paul attended only a few; found baby sitters and arranged for work-related child care (including au pairs after the separation); shopped for their clothes; and taught the children manners, including preparation of thank-you notes. Kristin agreed that Paul went to the children's school concerts and that he played with them when he came home from work. She contends that it has only been since the separation that Paul has maneuvered to play more of a role in child care.
We also note from mother's March 21, 2007 certification that:
(1) in a twenty-eight day month, she has eighteen overnights with the children, while father has ten; (2) she helps the girls study for tests and prepare "long term" assignments and supervises the children's homework assignments; although father does some homework with their older daughter on Tuesday nights, she frequently comes home with work left to do; (3) she prepared all the girls' birthday parties except for the most recent one for their older daughter; (4) she regularly takes the children to church with her; and (5) she enrolled the children in CCD*fn4 and regularly attends all CCD functions. Mother also certified that she has primary responsibility for school transportation; father drives the children to school only on Friday mornings and every other Monday and does not pick them up after school. She presented documentary evidence that father missed two of the three mandatory parent workshops for their older daughter's First Communion, that father only took the children to five out of forty-nine medical appointments since 2003, and that she is in charge of investigating matters involving the children and scheduling their activities, after which she checks with father to obtain his approval.
Although the court was clearly sympathetic to father's plight following the May 2007 trial, it "st[ood] by its determination" that the parties did not have a de facto shared parenting arrangement for the reasons it previously articulated following the motions. We are satisfied the record supports the court's finding. Although father spends considerable time with the children, his physical custody does not reach the 50% level of Pascale, supra, nor does he perform an equal caretaking role. 140 N.J. at 597. The testimony and evidence demonstrate that mother has retained the greater physical and emotional role, id. at 598-99, as well as the key custodial responsibilities that the parties anticipated when they designated her PPR in their settlement agreement.
We also discern no abuse of discretion by the court in its determination that Shea, a trial court case from another vicinage, was factually inapposite and did not warrant the substitution of the best interests standard for the Baures test. In Shea, supra, the parties signed a property settlement agreement in June 2004 and proceeded uncontested on their divorce, incorporating a parenting agreement entered into in January, in which the mother was named PPR and the father had liberal parenting time. 384 N.J. Super. at 270. Three months later the mother moved to relocate to North Carolina, asserting that her primary reason was that her mother had moved there in March. Id. at 270-71. The court was concerned with the proximity of the removal application to the final judgment of divorce and the fact that the mother was aware of the facts applicable to her removal action at that time, in view of the father's assertion that he settled the issue of custody and waived his right to seek to be the PPR based upon his substantial and regular parenting time. Ibid. The court found the mother established a prima facie case for removal based on the two Baures prongs, but in view of the father's conflicting certifications ordered a plenary hearing, at which the father had the right to establish that the Baures removal procedures were manipulated by the mother in filing her removal action shortly after the entry of the final judgment, when the issue could have been joined in the divorce litigation. Id. at 273. The court held, if proven, fundamental fairness would require the father to be restored to his pre-judgment of divorce status and the removal application would be considered as though it were an initial custody determination, i.e., utilizing the best interests of the child standard. Id. at 273-74.
In the present case, the trial court did not find either the facts or equities to be the same. Additionally, the court felt the focus should be on the timeframe from the commencement of the parenting arrangement to the filing of the relocation motion, not simply from the final judgment to the relocation motion. Either way, the court found there was insufficient proximity to have deprived father of his position in terms of purportedly ceding physical custody of the children to mother on the expectation that she would remain forever in New Jersey. Father left the marital home in August 2004. Although the PSA was not formalized until March 2005, the parties had been living by its terms since around December 2004. Mother was not dating anyone at the time the PSA was negotiated or memorialized. She had just started dating Mambro in July 2005, a month before the divorce. Father is the one who filed a motion for a change in custody in November, three months after the divorce was entered. In view of the pending motion and Mambro's proposal in December, in January 2006, mother filed her cross-motion for permission to relocate. Our review of the record does not indicate that mother acted in bad faith in her custody negotiations and resolution of the custody issue or in her filing of the subsequent removal action so as to warrant a departure from the Baures removal standard.
Reversed in part and affirmed in part. Mother is permitted to relocate at the end of the June 2010 school year. We remand to the court*fn5 for the sole purpose of fine tuning the logistics of the visitation and communication schedule, which shall be accomplished within thirty days. We do not retain jurisdiction.