On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FD-12-1997-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 18, 2012 -
Before Judges Lihotz and Waugh.
Plaintiff J.M., to whom we refer by the pseudonym Jane, and defendant J.R., to whom we refer by the pseudonym James, are the parents of a daughter born in January 2007. Jane appeals the February 16, 2011 and April 11, 2011 orders of the Family Part to the extent they (1) grant James expanded parenting time, (2) deny her request to modify the times of parenting exchanges, (3) deny her request to increase their daughter's preschool attendance; and (4) modify the parent-child holiday schedule. We affirm in part and remand in part.
The background of the parties' relationship and prior litigation is set forth at length in our opinion deciding a prior appeal, J.M. v. J.R., No. A-2953-08 (App. Div. Apr. 15, 2010) (slip op. at 2-6), which we incorporate by reference. We affirmed portions of the order then on appeal, but remanded for "a hearing to determine the issue of custody on a more permanent basis." Id. at 12. We did so because the only orders in place regarding custody were "various domestic violence restraining orders" which gave Jane "'temporary custody.'" Ibid.*fn1 We also ordered that "[a]ll further orders not directly involving domestic violence should be entered under the non-dissolution docket number." Id. at 13.
We instructed the remand judge to "fully consider the factors set forth in N.J.S.A. 9:2-4, as well as applicable case law, in determining what custody arrangements should be implemented." Id. at 12. We added that "any necessary adjustments to parenting time and [child] support may be considered in light of the custody arrangement chosen by the judge assigned to the case." Id. at 14.
The remand eventually resulted in a plenary hearing, following which the judge granted sole legal custody to Jane, who was designated the parent of primary residence. The judge based his decision on the following factors: (1) James's "inflexibility" in dealing with Jane when discussing matters relating to their daughter; (2) "the existence and reason[s]" for entry of the final restraining order (FRO); and (3) James's unfounded accusations "of misbehavior by Hunterdon County Family Court personnel" and his having misled a prior judge by stating that the FRO had been appealed to the Appellate Division, when in fact it had not. In coming to his decision, the judge referred to James as "someone who is obstinate, legalistic and rigid," and stated that he was "troubled about [James]'s credibility."
The Court determined that joint physical custody was "neither practicable nor feasible," nor was it in the best interests of the child. In coming to this determination, the judge considered the geographical distance between the parties' homes (twenty-three miles), the existence of the FRO, and the parties' inability to communicate with one another.
However, the judge went on to explain that his determinations concerning custody did not mean that James "should not have reasonable parenting time." He noted that by Jane's own testimony and the emails she submitted to the court, the interactions between James and their daughter are positive. Accordingly, the judge ordered that the then current parenting time schedule remain in place, but modified it by affording James an overnight on Monday and Tuesday of the weeks during which he was not scheduled to have weekend parenting time. The judge also awarded James two nonconsecutive weeks of parenting time in the summer,*fn2 between June 30 and September 1. The judge also recognized that a holiday schedule between the parties was already in place, but afforded them thirty days to agree to a modified holiday schedule. The judge stated that, if the parties did not submit a modified holiday schedule, "the Court's holiday schedule will be adhered to." On February 16, the judge issued an amended order in which he reduced James's weekly child support by three dollars because he had modified overnight parenting time.*fn3
Jane moved for reconsideration. After hearing oral argument and delivering an oral decision on April 11, 2011, the judge filed an order on that motion. In relevant part, the order denied reconsideration of parenting time and, because the parties had not been able to agree on their own ...