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M.I v. B.I

January 23, 2013

M.I., PLAINTIFF-RESPONDENT,
v.
B.I., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Monmouth County, Chancery Division, Family Part, Docket No. FM-13-1846-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 8, 2013 - Before Judges Fisher and Waugh.

Defendant B.I. (Brad*fn1 ) appeals the January 27, 2012 order of the Family Part denying his application for change of the primary residence of his daughter A.I. (Amy). The parent of primary residence is currently plaintiff M.I. (Meg). Brad, with Amy's concurrence, seeks to become the parent of primary residence. He also appeals the judge's removal of the parenting coordinator. We affirm the removal of the parenting coordinator, but remand to the Family Part for further consideration of the parenting issue consistent with this opinion.

I.

We discern the following facts and procedural history from the record on appeal.

The parties were married in 1996. They have two children, Amy, who was born in January 1997, and P.I. (Paul), who was born in September 2001. They were divorced in August 2006, at which time they entered into a custody and parenting-time agreement. The parents arranged to have joint legal custody of the children, with Meg designated as the parent of primary residence. The agreement set forth parenting schedules for the academic year and summer, as well as holidays and special occasions. The generous academic-year parenting time for Brad was conditioned on his residing "within 20 minutes" of Meg.

In August 2009, the Family Part judge reduced Brad's parenting time during the academic year because he was not living within the agreed upon distance. In March 2011, the judge denied Brad's application to reinstate the prior parenting arrangements, but required the parties to meet with a court-appointed parenting coordinator to address their issues.*fn2 Those efforts were not successful.

In November 2011, Brad filed a motion for the transfer of Amy's primary residence to him, specifically asking that Amy be interviewed in camera. Following argument on December 16, the judge agreed to hold the interview and deferred decision on the motion.

On January 4, 2012, the trial judge conducted an in camera interview of Amy, who was just short of her fifteenth birthday and in her freshman year of high school. During the interview, Amy clearly expressed and explained her preference to live primarily with her father.*fn3

On January 26, the judge placed an oral opinion on the record. He characterized Amy as "a bright young lady" and "a very sophisticated 15 year old girl." He noted that, although there is always reason for concern that a child's preferences with respect to the residential parent reflect pressure from one of the parents, there was not "any evidence that that occurred here." He noted, however, that Amy was overly conversant with the positions of both parents.

The judge stated that during the interview, Amy expressed "her own feelings on th[e] issue" of her residence and that she "very much want[ed] to go live with her father." Nevertheless, the judge denied the application because he did not want the parties' two children living in different primary residences and did not want to remove Amy from a school in which she was doing well. He also concluded that, because Amy was doing well in school, her problems with her mother were not as serious as she or her father portrayed them. Finally, the judge removed the parenting coordinator, finding that there was no need for one and that "too many hands in the kitchen tends to spoil the stew." This appeal followed.

II.

On appeal, Brad argues that the judge erred in disregarding Amy's preferences, putting the assumed needs of the parties' son before Amy's without justification, and relying too heavily on the fact that Amy was doing well in her then current school. He further contends that the judge demonstrated bias during the interview because he was skeptical that Amy was ...


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