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Walsh-Morales v. Morales

November 5, 2010

MARY ELIZABETH WALSH-MORALES, PLAINTIFF-APPELLANT,
v.
JON D. MORALES, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1644-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 27, 2010

Before Judges Rodríguez, Grall and C.L. Miniman.

The dispute underlying this appeal arose when plaintiff, a divorced mother, told defendant, her former husband, that she planned to remarry and move to Texas with their daughter. Asserting that he and plaintiff jointly share legal and physical custody of their daughter, defendant moved to bar her from acting on her plan or, in the alternative, to obtain sole residential custody of their daughter in New Jersey. See O'Connor v. O'Connor, 349 N.J. Super. 381 (App. Div. 2002). Plaintiff disputed defendant's characterization of their custodial arrangement. Asserting that she has primary residential custody, plaintiff filed a cross-motion for an order authorizing her to bring their daughter to Texas because her plan was formulated in good faith and is not inimical to their daughter's best interests. See N.J.S.A. 9:2-2; Baures v. Lewis, 167 N.J. 91, 116 (2001).

The trial judge found that the parties truly shared joint physical and legal custody of their daughter after the divorce and concluded that modification of that arrangement was not in their daughter's best interests. Accordingly, he denied plaintiff's request and directed defendant to assume primary residential custody if plaintiff relocates.

Plaintiff appeals. She does not contend that she can prevail if the judge correctly concluded that she and defendant shared physical custody of their daughter. Instead, she argues that the judge erroneously concluded the parties share joint physical custody and consequently applied the wrong legal standard. See Baures, supra, 167 N.J. at 116.

We affirm because the judge's factual findings are "supported by adequate, substantial, credible evidence" in the record as a whole, O'Connor, supra, 349 N.J. Super. at 400-01, and the "judge's evaluation of the underlying facts and their implications" are not "so wide of the mark that a mistake must have been made." MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007).

The legal standards provide a framework for our consideration of the evidence presented to the judge during a plenary hearing. "[T]he preliminary question in any case in which a parent seeks to relocate with a child is whether it is a removal case or whether by virtue of the arrangement between the parties, it is actually a motion for a change in custody." Baures, supra, 167 N.J. at 116. That critical determination "has a significant impact on whether a parent will be permitted to remove a child from the jurisdiction." Mamolen v. Mamolen, 346 N.J. Super. 493, 496 (App. Div. 2002).

When physical custody is jointly shared, one parent's move implicates that custodial arrangement. Accordingly, the parent who wants to relocate is required to show changed circumstances sufficient to warrant obtaining primary physical custody.

Baures, supra, 167 N.J. at 116; O'Connor, supra, 349 N.J. Super. at 398.

A less stringent standard is applied when there "is some lesser" sharing of physical custody and parental responsibility. Mamolen, supra, 346 N.J. Super. at 495. In that circumstance, an application filed by the parent who is the residential custodian is granted if it is made in good faith and is not inimical to the child's interest. Baures, supra, 167 N.J. at 118-19; Mamolen, supra, 346 N.J. Super. at 495.

The labels used in a divorce decree to describe the custodial arrangement are not determinative. O'Connor, supra, 349 N.J. Super. at 399-400; Mamolen, supra, 346 N.J. Super. at 499; see Baures, supra, 167 N.J. at 116 (referring to both "de jure and de facto" sharing of physical custody). Time spent with the child is important to the extent that the parent assumes responsibility for duties performed by a primary caretaker during that time. O'Connor, supra, 349 N.J. Super. at 385. The duties that are the hallmarks of primary caretaking include planning for and providing the child's meals, grooming, clothing, medical care, activities, alternate caregivers, bedtime, nighttime and morning care, discipline and education. See id. at 399 (discussing and quoting Pascale v. Pascale, 140 N.J. 583, 598-99 (1995), and the cases relied upon therein).

Thus, to characterize the parties' custodial arrangements, this court has looked to the temporal division of responsibility and the nature of the duties that are shared. A true joint physical parent is more than just a babysitter for the other - that is a subordinate "rather than [a] joint, caretaking role." Barblock v. Barblock, 383 N.J. Super. 114, 125 (App. Div.), certif. denied, 187 N.J. 81 (2006). In assessing a parent's time spent with his or her child, we take account of the unique circumstances of each family. In some families, weekdays may be more significant than weekend nights, because that is when parents are involved with school, homework and medical appointments. In other families, time spent together on weekends may be critical because both parents work outside the home, have others assist during the ...


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