On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1956-03C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Parrillo.
Defendant Rosania Gravano appeals from a September 14, 2009 order of the Family Part denying her request for physical custody and allowing plaintiff John Williams to relocate with their eleven-year old son to Minnesota, and from a December 15, 2009 order fixing her child support obligation at $178 weekly.
We reverse the child support determination and remand on that issue. We affirm in all other respects.
By way of background, the parties were married on April 2, 1997 and had one child, a son, born in 1997. They separated in 1999, and the child has been living with plaintiff ever since. The parties divorced by final judgment (FJD) dated June 27, 2003. Defendant did not participate in the divorce proceedings, and the FJD awarded plaintiff "sole legal and residential custody," further providing that "defendant (mother) is terminating her parental rights."
According to plaintiff, in the years immediately following their separation, defendant maintained very little contact with her son and had not been involved in his education. Sometime later, however, the parties shared parenting time from 2003 to 2005, when defendant moved to Florida with her then boyfriend, now husband. Thereafter, the parties could not agree upon parenting time arrangements without court involvement, and orders allowing defendant "reasonable and liberal contact with [the child]" were issued in February and May 2006. A February 3, 2006 order vacated the terms of the FJD terminating defendant's parental rights. In January 2008, defendant moved back to New Jersey, and until June 2009, she "essentially saw [the child] whenever [she] wanted." According to plaintiff, not until 2008 had defendant begun paying any child support.
In July 2009, plaintiff remarried and his wife was living in Minnesota, where she has a home and had been working as an adjunct professor at a university for the last ten to fifteen years. Plaintiff had been recently laid off from his job in New York City and, he claimed, had been offered better-paying employment in Minnesota. According to plaintiff, he believed that as sole custodian, he was free to move to Minnesota with his son, and when he discussed this over the phone with defendant, she allegedly told him "she was ok with it." Plaintiff then offered her more parenting time than she had under the plan in effect since 2006.
Defendant disputed plaintiff's version of his move to Minnesota. According to defendant, she first learned of plaintiff's intention from her son in June 2009. When she confronted plaintiff, he supposedly told her that she could not stop him. Nevertheless, plaintiff sought defendant's consent, which she refused. On August 17, 2009, plaintiff flew with his son to Minnesota, ostensibly for a job interview, but he later informed defendant that he and the child were permanently relocating there. In view of this incident, which defendant considered to be kidnapping, defendant filed back-to-back orders to show cause in August 2009, seeking return of her son to New Jersey and joint physical and legal custody, respectively.
The Family Part judge held a Baures*fn1 hearing on September 10, 2009, and at the conclusion of that proceeding, interviewed the child, who indicated a clear preference for living with plaintiff. On September 14, 2009, the trial judge orally placed his findings of fact and conclusions of law on the record, which included the following:
As to the issue of removal of the child from the State of New Jersey, the custodial parent must initially show there is an advantage to the parent to move to another State, and that the move is not inimical to the best interest of the child. Both of those prongs have been met. The father indicates that the reason for the move is his marriage, as well as his new employment.
One must look at the [Baures factors] in order to determine what is truly in the child's best interests. The reasons given for the move have previously been addressed. The reasons for the opposition is the mother's feeling that she's losing her relationship with her son, although none has been demonstrated.
Visitation has been extensive during the times when she lived out of State, and there is no reason to believe that she will not have extensive visitation at this time.
The past history of dealings between the parties as far as it bears on the reasons for supporting or opposing the move indicate that there has been some strife between the parties as to visitation, but it has been worked out in an amicable manner.
The child of course will have appropriate educational and health opportunities in Minnesota as he would in New Jersey. There was no evidence presented as to whether the private school that the child is enrolled in is better or worse than the public education system that was available through the mother in Pennsauken, New Jersey.
The child has no special needs or talents that need to be accommodated. The visitation and communication schedule can be developed to allow the non[-]custodial parent to maintain a full continuous relationship with the child.
The father has agreed and has offered the mother to pay for her and her husband to go over the Christmas holidays and spend extended periods of time in Minnesota during the child's vacation. He also agreed to pay for the child to go to spend the Spring recess with his mother in New Jersey. And has agreed to pay for the child to come to New Jersey to be with the mother for an extended period of time, i.e., six or seven weeks, during the Summer recess. I'm sure additional visitations can be worked out between the parties so that both parents have a strong nurturing relationship with the child.
It is at this point that the Court wishes to point out that the parenting skills of both parents have been evident during the interview with the child, who was extremely articulate, poised and verbal during the interview. And clearly indicated his preference of living with the father in Minnesota. And thought that his father's wife was a wonderful person.
There is no question that both parents will continue to foster a close relationship with the non-custodial parent, as ...