On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1360-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 28, 2012
Before Judges Yannotti and Espinosa.
Plaintiff appeals from an order denying her motion to reinstate parenting time pursuant to a judgment of divorce. We reverse.
Plaintiff and defendant were married through an arranged marriage in 2003, and divorced by a final judgment of divorce (JOD) entered March 25, 2008. During their marriage, they had one child, Heather,*fn1 who was born in April 2006.
The JOD provided that the parties would share joint legal and physical custody of Heather but identified plaintiff as the primary custodian. The parties agreed that defendant would have parenting time every Tuesday evening until Thursday morning and alternating weekends. At the time of their divorce, plaintiff was a third-year resident in pediatrics at the University of Medicine and Dentistry of New Jersey. The JOD further stated that she "reserve[d] the right to apply to the court for
[r]elocation" with Heather.
Plaintiff accepted a position as a pediatrician in Indiana after she was not offered any positions in New Jersey. In February 2009, she filed an order to show cause and, by order dated February 18, 2009, the court permitted her "to immediately relocate to the state of Indiana with [Heather.]" Defendant filed opposition and a motion for a change in custody. In May 2009, the court entered another order, which denied defendant's motion for a change in custody, ordered a custody evaluation, and amended the prior order to rescind the court's permission for removing Heather from the state "until further Order of the Court."
Plaintiff commenced her employment in Indiana in February 2009. Heather remained in New Jersey with defendant, who had remarried. The court-ordered custody evaluation, which was not completed until July 2009, recommended a shared custody arrangement.
In December 2009, plaintiff's motion for permission to relocate with Heather remained undecided. Plaintiff withdrew her motion and filed a new motion, to reinstate parenting time pursuant to the JOD and to appoint a parenting coordinator. In her certification, plaintiff stated that she had recently accepted employment in New Jersey, which was to begin in January 2010.
The trial court appointed a parenting coordinator, Linda Schofel, and held a one-day hearing on February 28, 2011. At the time of the hearing, the parenting schedule in place provided that defendant was to remain the primary custodian and plaintiff was to have parenting time from Tuesday evening to Wednesday morning and on alternating weekends.
Schofel testified that upon plaintiff's return to New Jersey, defendant refused to consent to a fifty-fifty split in parenting time. Based upon her observations of Heather with the parties and defendant's wife, she stated that Heather had "a very warm relationship" with each of them. She reported on the accommodations each provided for Heather, noting that plaintiff's apartment contained a "nice size bedroom" for Heather and that, in defendant's home, Heather had her own bed but shared a bedroom with defendant and his wife.
Schofel expressed concern about the "animosity" between plaintiff and defendant, that they were not "working together" and that their communication was "pretty much non-existent." She believed that Heather was caught in the middle of their ...