NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0325-19
A.R.P.,
Plaintiff-Respondent,
v.
R.C.T.,
Defendant-Appellant.
Submitted January 19, 2021 – Decided March 10, 2021
Before Judges Sabatino, Currier and DeAlmeida.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FD-13-0741-04.
Buchan & Palo LLC, attorneys for appellant (Stephanie Palo, on the briefs).
Pavliv & Rihacek, LLC, attorneys for respondent (John Thaddeus Rihacek, of counsel and on the brief).
PER CURIAM Defendant, father, appeals from the August 7, 2019 order granting
plaintiff's motion to relocate to Florida with their daughter S.P-T., Susan.1
Susan was born in June 2003. She lived with plaintiff – her mother – and
her maternal grandmother in Florida until October 2010. At that time, defendant
was awarded full custody of Susan because of her chronic absences from school
and lack of medical and dental care while in plaintiff's custody.
Shortly thereafter, defendant and Susan moved to New Jersey to live with
defendant's mother. Plaintiff followed within several months. In October 2012,
the parties agreed under a consent order for plaintiff to attend therapy and a
substance abuse evaluation as a precondition to beginning family therapy with
Susan and defendant. Plaintiff gradually obtained increased parenting time and
responsibility through various court orders, culminating in a July 2016 order in
which defendant continued to serve as Susan's parent of primary residence,
plaintiff became her parent of alternate residence, and the parties shared joint
legal custody.
In May 2018, Susan told police that defendant had inappropriately touched
her. Thereafter, she went to live with plaintiff in a nearby town in New Jersey.
1 We use initials and a pseudonym to protect the minor's privacy. R. 1:38- 3(d)(10). A-0325-19 2 Plaintiff was granted temporary residential custody of Susan in January 2019.
Defendant was charged with third-degree aggravated criminal sexual contact
and second-degree endangering the welfare of a child. A no-contact order
prevented defendant from seeing or having any contact with Susan. The
criminal charges remained unresolved at the time of the relocation hearing.
In June 2019, plaintiff filed a motion requesting permission to move with
Susan to their prior location in Florida. On July 31, 2019, the parties appeared
pro se before the Family Part.
Plaintiff explained that the primary reason she wished to relocate to
Florida with Susan was because "[t]hat's where all [her] family [was]." Plaintiff
represented she had a job lined up at Goodwill and that she expected to attend
school to train as a phlebotomist in Florida. Plaintiff told the judge that she and
Susan were residing in a home owned by her brother in New Jersey and he
planned on selling the home in the near future. Plaintiff stated that once in
Florida, she and Susan would live with plaintiff's mother in her home.
The judge asked plaintiff why it was in Susan's best interest to move since
she was entering her junior year in high school and the move would require he r
to attend a new school. Plaintiff replied that the presence of her family, Susan's
A-0325-19 3 desire to attend college in Florida, and Susan's preference to relocate to Florida
to be away from her father demonstrated the move was in Susan's best interest.
The judge also inquired how relocation would affect Susan's therapy,
which at the time entailed weekly sessions with a therapist. Plaintiff said she
had "found a place already[,]" and represented that the therapist said the "move
would be best for us." Although plaintiff had letters from the therapists, the
letters did not contain the proffered statement. Plaintiff did not produce any
evidence comparing the Florida high school to Susan's present school.
When the Family Part judge returned to the courtroom after a break, he
noted the case was "complex." He also advised he wanted to interview Susan,
then sixteen years old. The judge adjourned the case until August 7, 2019 and
informed the parties they should return with relevant documentary evidence and
witnesses. He also told the parties they could provide questions for him to ask
Susan during the interview.
The parties reconvened on August 7, 2019. Plaintiff did not provide any
proof of employment in Florida and advised she had not made any inquiries
about the school Susan would attend.
Plaintiff presented her mother, Carol, as a witness. Carol said she owned
a two-bedroom home in Florida and plaintiff and Susan could live with her. She
A-0325-19 4 reiterated plaintiff's reasons when asked why it was in Susan's best interests to
relocate to Florida.
The judge then questioned defendant regarding his opposition to the move.
Defendant said he was concerned about plaintiff's ability to adequately care for
Susan as she had failed to provide appropriate care when she was the custodial
parent. Defendant also stated the relocation would affect Susan's relationship
with him and his mother.
In preparing to interview Susan, the judge asked the parties if they had
any questions for her. Defendant provided a list of questions and plaintiff
indicated she was "fine with . . . whatever you talk about." After the interview,
the judge summarized its contents for the parties. The bottom line was that
Susan expressed her desire to move to Florida to be with additional family. She
said some of her friends and her paternal grandmother did not believe the
allegations Susan had made against her father and it was hard to have a
relationship anymore with them under those circumstances.
In an oral decision issued on August 7, 2019, the Family Part judge stated
that Bisbing v. Bisbing 2 and N.J.S.A. 9:2-4(c) governed his determination. The
judge then analyzed each of the fourteen statutory factors under N.J.S.A. 9:2-
2 230 N.J. 309, 338 (2017). A-0325-19 5 4(c). He found that the majority of the factors either weighed in favor of
relocation or were neutral, with only one factor weighing against relocation.
Therefore, the court concluded plaintiff had met her required burden by a
preponderance of the credible evidence and granted her motion to relocate with
Susan to Florida.
The judge made the following findings regarding the factors. As to factor
one—the parents' ability to agree, communicate, and cooperate in matters
relating to the child—the court found it was neutral because the parties did not
"communicate when they [were] in Monmouth County, and they're probably not
going to communicate any better where there's distance between them."
Factor two—the parents' willingness to accept custody and any history of
unwillingness to allow parenting time not based on substantiated abuse—
weighed in favor of relocation because given defendant's no-contact order, the
judge found there was "no other option in terms of residential custody now
between these two parties."
Factor three—the interaction and relationship of the child with his or her
parents and siblings—weighed in favor of relocation because of the no-contact
order and Susan's statements that she did not wish to see defendant even if his
charges or the no-contact order were dismissed.
A-0325-19 6 The court found factor four—the history of domestic violence, if any—
was inapplicable because there was no testimony of any history between the
parties.
Factor five—the safety of the child and the safety of either parent from
physical abuse by the other parent—weighed in favor of relocation. The judge
found the no-contact order "create[d] some level of risk for physical abuse from
[defendant][;]" while plaintiff's prior failings when Susan was in her custody
were "view[ed] as largely water under the bridge" since there was no evidence
that plaintiff put Susan at risk while caring for her in New Jersey.
In assessing factor six—the preference of the child when of sufficient age
and capacity to reason so as to form an intelligent decision, the judge stated it
weighed "strongly" in favor of relocation and he gave it "significant weight"
because Susan "made clear" her desire to relocate to Florida. The judge deemed
this the "most important factor in the analysis."
Factor seven—the needs of the child—weighed "ever so slightly" in favor
of relocation, the judge stated, because although "[n]othing was really brought
up in terms of special needs[,]" there was greater financial and familial support
available to Susan in Florida.
A-0325-19 7 The court found factor eight—the stability of the home environment
offered—was neutral because while the home environment in Florida might
provide greater stability, it was counterbalanced by Susan's need to adapt to a
new school, new therapists, and new friends.
Factor nine—the quality and continuity of the child's education—weighed
"ever[] so slightly" against relocation because neither party presented sufficient
evidence to permit the judge to ascertain whether Susan would receive a better
or worse education in Florida.
Factor ten—the fitness of the parents—was neutral because there was
insufficient evidence showing either parent was unfit since plaintiff's alleged
misconduct occurred nearly ten years ago and defendant was only charged with
offenses and not convicted.
Factor eleven—the geographical proximity of the parents' homes—was
neutral because while typically this factor would weigh strongly against such a
relocation, the judge found the no-contact order negated this factor given that
defendant was prevented from communicating with or seeing Susan.
Factor twelve—the extent and quality of the time spent with the child prior
to or subsequent to the separation—was neutral because Susan had spent
significant portions of her life living with each parent.
A-0325-19 8 Factor thirteen—the parents' employment responsibilities—was neutral
because neither party presented any evidence that either was prevented from
caring for Susan because of work responsibilities.
Factor fourteen—the age and number of the children—was neutral
because Susan did not have any siblings. The court noted there were family
members residing in both Florida and New Jersey.
After concluding that more factors weighed in favor of relocation, the
judge then performed a qualitative analysis. He stated:
And primarily what moves the [c]ourt here is the order that there can't be any contact right now, August 7, 2019. What happens on September 2, September 3, I can't predict. And the preference of this [sixteen]-year- old girl who I found to be mature, I found her to be credible, I found her to be articulate. And she made her desires known both in terms of her interaction with her father and where she would like to live.
And that's really what moves me. I thought long and hard about whether making this decision today or waiting until September 3 to see what, if anything, . . . Judge Oxley does on the application. [3] But fundamentally the child should have some level of stability and direction in terms of where the child will be attending school, recognizing that these analyses are done in the best interest of the child.
3 Defendant represented during the hearing that he had a motion to dismiss the criminal charges pending before Judge Oxley. A-0325-19 9 And if the [c]ourt were to wait even until September 3 the [c]ourt would still be left with a situation where now, even if the no-contact order is lifted the child would not have had any contact with [defendant] for at that point approximately [seventeen] months.
And based on the child's very affirmative declaration of not wanting that relationship, be left in a very similar boat, and again the preference of the child would largely control when we're talking about a [sixteen]- year-old high school junior here, in terms of this analysis.
And even if there is a dismissal of the criminal charges it would be a substantial non[-]temporary change in circumstance which would require further litigation and probably bring us to a point further in the school year that would just require further uncertainty for this child who I think common sense would dictate needs some certainty in her life.
As stated, the court granted plaintiff's motion to relocate with Susan to Florida.
On appeal, defendant seeks the reversal of the order granting plaintiff's
motion to relocate. He argues that the court erred in finding relocation was in
Susan's best interest, that he was deprived of due process during the hearing,
and that the court gave undue weight to the no-contact order in its determination.
Our scope of review of Family Part orders is limited. Cesare v. Cesare,
154 N.J. 394, 411 (1998). We will not disturb the "factual findings and legal
conclusions of the trial judge unless we are convinced that they are so manifestly
unsupported by or inconsistent with the competent, relevant and reasonably
A-0325-19 10 credible evidence as to offend the interests of justice." Rova Farms Resort, Inc.
v. Investors Ins. Co., 65 N.J. 474, 484 (1974).
Substantial deference is owed to the Family Part's findings of fact because
of its special expertise in family matters. Cesare, 154 N.J. at 413. Deference is
especially appropriate when the evidence is "largely testimonial and involves
questions of credibility." Id. at 412. A trial judge who observes witnesses and
listens to their testimony is in the best position to "make first -hand credibility
judgments about the witnesses who appear on the stand." N.J. Div. of Youth &
Family Servs. v. E.P., 196 N.J. 88, 104 (2008). Thus, this court does not "weigh
the evidence, assess the credibility of witnesses, or make conclusions about the
evidence." Mountain Hill, LLC v. Twp. of Middletown, 399 N.J. Super. 486,
498 (App. Div. 2008).
Defendant contends that, although the trial court applied the correct
standard and relied upon the requisite statutory factors, the decision to grant
plaintiff's motion to relocate was an abuse of discretion. He asserts that plaintiff
failed to meet her burden of proof because she did not "successfully submit a
single document into evidence" and instead relied upon "unsubstantiated
hearsay." Defendant claims the inadequate hearing "left far more questions than
answers" regarding: (1) where Susan would live; (2) where she would attend
A-0325-19 11 school and the quality of the school; (3) whether there would be adequate
therapy resources available; and (4) plaintiff's employment.
Under N.J.S.A. 9:2-2, a parent who seeks to remove a child from this state
when the other parent does not consent must demonstrate "cause" for the
removal. The legislative intent of this statute was "to preserve the rights of the
noncustodial parent and the child to maintain and develop their familial
relationship." Bisbing, 230 N.J. at 323 (quoting Holder v. Polanski, 111 N.J.
344, 350 (1988)).
In Bisbing, the Court interpreted "cause" under N.J.S.A. 9:2-2 as requiring
the petitioning parent to satisfy the best interests analysis set forth in N.J.S.A.
9:2-4(c), "supplemented by other factors as appropriate." 230 N.J. at 338 (citing
N.J.S.A. 9:2-4(c)). In making "the sensitive determination of cause[, a court]
must weigh the custodial parent's interest in freedom of movement as qualified
by his or her custodial obligation, the State's interest in protecting the best
interests of the child, and the competing interests of the noncustodial parent."
Id. at 323 (internal citation omitted).
Here, the trial judge appropriately applied the Bisbing standard and relied
on the factors enumerated in N.J.S.A. 9:2-4(c) in deciding the motion. He
concluded factors two, three, five, six, and seven weighed in favor of relocation.
A-0325-19 12 The judge gave "significant weight" to factor six—the preference of the child—
and stated it was the "most important factor in the analysis." This determination
followed from his interview of Susan and his assessment that she possessed
"sufficient age, sufficient maturity, [and] sufficient capacity" and was "credible
. . . [and] articulate."
Our courts have long recognized that the preference of a child of sufficient
age and maturity is entitled to consideration in rendering custody decisions. See
Lavene v. Lavene, 148 N.J. Super. 267, 272 (App. Div. 1977) (holding courts
should afford children the opportunity to express their custodial preference and
noting the "age of the child certainly affects the quantum of weight that his or
her preference should be accorded"). Given that Susan was sixteen at the time
of the hearing, it was not error for the judge to give her clearly stated preference
to relocate significant weight in his decision.
The judge also considered the no-contact order in place against defendant.
This order resulted from the aggravated criminal sexual contact and endangering
the welfare of a child charges defendant faced because of Susan's allegations.
While defendant had not been convicted at the time of the hearing, the judge
correctly noted the no-contact order "create[d] some level of risk for physical
abuse from dad." Accordingly, it was properly considered as an "other factor[]"
A-0325-19 13 supplementing the enumerated factors in N.J.S.A. 9:2-4(c). Bisbing, 230 N.J. at
338.
Under his analysis, the judge only found factor nine—the quality and
continuity of the child's education—weighed "ever[] so slightly" against the
move. This was because neither party presented sufficient evidence to permit
the judge to determine whether the quality of Susan's education in Florida would
be superior or inferior to her current school. Although the record lacked this
information, it was just one factor in a qualitative analysis that requires
consideration of a myriad of factors. We similarly discern no error in the judge's
findings regarding plaintiff's living arrangements and employment in Florida or
the availability of therapy resources for Susan.
Therefore, it was not a mistaken exercise of discretion for the court to
conclude that relocation was in Susan's best interest after its consideration of the
relevant factors in N.J.S.A. 9:2–4(c) and "other factors as appropriate." Ibid.
We briefly address and reject defendant's argument that the trial court
erred by failing to "ensure that sufficient judicial resources were expended on
this complex matter and that procedural due process was preserved." Defendant
contends the court erred by permitting the parties to submit unauthenticated
A-0325-19 14 documents into evidence, allowing plaintiff to introduce hearsay testimony, 4 and
prohibiting the parties from engaging in discovery.
Family Part judges are given broad discretion in managing their dock ets
in accordance with the circumstances of each individual case. Major v. Maguire,
224 N.J. 1, 24 (2016) (citations omitted). Such discretion reflects the
recognition of the Family Part's special expertise in resolving family matters.
E.P., 196 N.J. at 104.
When a party fails to bring a trial error to the trial judge's attention, we
review for plain error. State v. Chavies, 345 N.J. Super. 254, 265 (App. Div.
2001). Reversal is warranted on such grounds only where the party shows the
error was "clearly capable of producing an unjust result[,]" R. 2:10-2, and was
"sufficient to raise a reasonable doubt" as to whether the error led the court to a
result it otherwise might not have reached. State v. Macon, 57 N.J. 325, 336
(1971).
Here, the parties appeared before the court on the scheduled hearing date.
The judge began to hear testimony. Defendant did not object to the testimony
4 Defendant refers to the following statements as inadmissible hearsay or otherwise impermissibly admitted: (1) plaintiff's claim that Susan's therapists thought "the move would be best for us"; (2) plaintiff's claim that her brother planned to sell the house in which she and Susan resided; and (3) plaintiff's claim that she had a job waiting for her in Florida. A-0325-19 15 or the commencing of the proceedings. Defendant did not request discovery or
the opportunity to obtain counsel. After a recess, the court adjourned the hearing
and instructed the parties on how the case would proceed. The court informed
the parties that the hearing would resume on August 7 and the parties should
come to court that day with documentary evidence and any witnesses whose
testimony they wished to present.
When the parties reconvened on August 7, they were accorded exactly that
promised opportunity – to provide their own testimony, present witnesses and
cross-examine any witnesses presented by the opposing party, and to present
documentary evidence. There was no objection to the proposed procedure or at
any time during the August 7 hearing.
In considering defendant's specific assertions of error, the statements he
delineates were not impermissible or consequential hearsay. Plaintiff told the
court where she intended to live and to work, clearly information within her
personal knowledge. See N.J.R.E. 602. Although the alleged statement of the
therapists was hearsay, it was not mentioned by the judge in his fact-finding nor
did he rely upon it in making his decision. Defendant cannot demonstrate plain
error.
A-0325-19 16 We also are not persuaded that the court gave "undue weight" to the no-
contact order. As we have stated, the court properly performed a best-interest-
of-the-child analysis and considered "all relevant factors set forth in N.J.S.A.
9:2-4(c), supplemented by other factors as appropriate." Bisbing, 230 N.J. at
309. The no-contact order was appropriately considered as a factor in the
determination whether relocation was in Susan's best interests.
Because the Family Part judge applied the correct legal standard and
statutory factors and his decision is supported by adequate, substantial, and
credible evidence in the record, we can see no reason to disturb it.
Affirmed.
A-0325-19 17