NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0358-23
E.C.,
Plaintiff-Appellant,
v.
R.L.S., JR.,1
Defendant-Respondent. __________________________
Submitted February 4, 2025 – Decided May 5, 2025
Before Judges Sumners and Perez Friscia.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FD-14-0046-23.
Jacobs Berger, LLC, attorneys for appellant (Jamie N. Berger and Holly M. Friedland, on the brief).
R.L.S., Jr., respondent pro se.
PER CURIAM
1 We use initials and a pseudonym to protect the minor's privacy. See R. 1:38- 3(d). Plaintiff appeals an April 5, 2024 Family Part order that did not designate
a parent of primary residence (PPR) for her almost five-year-old daughter, M.S.
(Mary) and implemented a 2-2-3 parenting plan. 2 She argues the court erred in
awarding both parties equal parenting time and refusing to designate her as the
PPR. After reviewing the record, the parties' arguments, and the governing legal
principles, we affirm the court's order regarding parenting time but reverse and
remand for the court to designate a PPR.
I.
On July 21, 2022, plaintiff filed a complaint seeking primary physical
custody of Mary and a parenting schedule limiting defendant father's custody of
Mary to alternating weekends. Defendant counterclaimed seeking primary
physical custody, an alternating holiday schedule, and child support. 3
On January 5, 2023, the trial court entered a consent order, in pertinent
part, stipulating that the parties had joint legal custody of Mary and scheduling
a hearing to resolve residential custody and the parenting schedule. In the
2 The 2-2-3 parenting plan called for defendant's parenting time every Monday and Tuesday; plaintiff's parenting time every Wednesday and Thursday; and for the parties to alternate parenting time on weekends from Friday through Sunday. 3 Defendant's other demands are not at issue here and will not be discussed.
A-0358-23 2 meantime, the order stated that: (1) both parties have a "right of first refusal,"
meaning if one party is unable to watch Mary for more than four hours during
their parenting time, then the other parent can watch her; (2) the parties must
agree to an alternating holiday and vacation schedule for watching Mary; and
(3) Mary must remain in her current daycare while the parties continue to reside
in the same household.
A plenary hearing was held over three days in April 2023 and July 2023
to determine parenting time, child support, physical custody, and counsel fees.
Between the hearing dates, on June 20, the trial court entered an interim
parenting time order in response to the parties' selling their jointly owned home
in Flanders. The trial court ordered a 2-2-3 parenting schedule, with neither
party being designated the PPR. Only the parties testified at the hearing.
Plaintiff testified that because the parties' seven-year relationship ended
and they no longer lived together, she wanted primary custody of Mary with
defendant having parenting time on alternate weekends because she did not
believe he could devote the time needed to care for their daughter daily. She
stated that when they lived together she provided ninety percent of Mary's daily
care when Mary was not in daycare. While defendant would ordinarily drive
Mary to daycare in the morning––a ten-minute drive from their home––plaintiff
A-0358-23 3 would pick her up after getting off work around 4:50 p.m. or 5:00 p.m. Once
home, plaintiff would bathe Mary, make her dinner, read to her, and prepare her
for bed.
Because the parties were selling their jointly owned home, plaintiff
planned to buy another house, but in the interim she would rent a three-bedroom
apartment in Wharton. She earned $129,398 a year, plus a bonus. On cross -
examination, plaintiff testified that her plans fell through, and she instead moved
to an apartment in Somerville. She remarked that she only became aware
defendant purchased a home in Newton due to his discovery response. She
approximated that their respective new residences are an hour's drive apart.
Thus, she felt it was practical to enroll Mary in a new daycare about fifteen
minutes away from her Somerville apartment.
Finally, as to the parties' relationship, plaintiff acknowledged their
communication is confined primarily to "minimal" texts and emails. She also
alleged domestic abuse, involving "harassing behavior," but chose not to report
the incidents to law enforcement because "[she] was afraid of the effects that it
would have on [defendant's] life." Despite the ending of their relationship, she
felt they could make decisions that were in Mary's best interests. For example,
A-0358-23 4 they agreed on Mary's vaccinations, pediatrician visits, and addressing her night
terrors.
Defendant testified he was formerly engaged to plaintiff. While he
initially requested primary custody of Mary, defendant now seeks equal
parenting time for Mary's benefit. Until about a week before the sale of their
home, he, plaintiff and Mary lived together.
Defendant stated he and plaintiff had a "division of labor . . . to make sure
[Mary's] needs were met." In the morning, plaintiff would wake up Mary, but
he would prepare her breakfast, occasionally help her get ready, and drive her
to daycare. Defendant attended Mary's daycare functions––except one––and
was familiar with her teachers and the staff. He recalled routinely spending
quality time with Mary, such as playing with slime and Play-Doh together, in
addition to coloring and reading. Defendant testified that he works as an
insurance manager and his employer "[is] very lenient and . . . let[s] us do what
we need to do for our kids." His 2023 annual salary was $125,000, not including
bonuses.
Defendant also has a teenage son, who lives with his mother in Florida.
He testified that Mary and her half-brother enjoy spending time together.
A-0358-23 5 Concerning disciplining their daughter, defendant said he and plaintiff are on
the same page and "try to be super patient with her."
Defendant testified that in March 2023, he bought a three-bedroom home
in Newton, approximately eighteen miles away from the parties' former home
and less than thirty minutes away from Mary's original daycare. However,
Mary's new daycare is an hour and twenty minutes away from his new home.
There, Mary has her own bedroom, as does his son for his temporary visits. He
said he bought furniture to replicate their previous home, painted a wall pink at
Mary's request, and explained that his home has a big backyard, is located on a
quiet street, and is in a kid-friendly neighborhood where kids play on the street.
Like plaintiff, defendant testified that even after they separated, efforts
were made to co-parent and maintain normalcy for Mary. For example, he stated
that he shares a Google Calendar with plaintiff to coordinate Mary's activities
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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-0358-23
E.C.,
Plaintiff-Appellant,
v.
R.L.S., JR.,1
Defendant-Respondent. __________________________
Submitted February 4, 2025 – Decided May 5, 2025
Before Judges Sumners and Perez Friscia.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FD-14-0046-23.
Jacobs Berger, LLC, attorneys for appellant (Jamie N. Berger and Holly M. Friedland, on the brief).
R.L.S., Jr., respondent pro se.
PER CURIAM
1 We use initials and a pseudonym to protect the minor's privacy. See R. 1:38- 3(d). Plaintiff appeals an April 5, 2024 Family Part order that did not designate
a parent of primary residence (PPR) for her almost five-year-old daughter, M.S.
(Mary) and implemented a 2-2-3 parenting plan. 2 She argues the court erred in
awarding both parties equal parenting time and refusing to designate her as the
PPR. After reviewing the record, the parties' arguments, and the governing legal
principles, we affirm the court's order regarding parenting time but reverse and
remand for the court to designate a PPR.
I.
On July 21, 2022, plaintiff filed a complaint seeking primary physical
custody of Mary and a parenting schedule limiting defendant father's custody of
Mary to alternating weekends. Defendant counterclaimed seeking primary
physical custody, an alternating holiday schedule, and child support. 3
On January 5, 2023, the trial court entered a consent order, in pertinent
part, stipulating that the parties had joint legal custody of Mary and scheduling
a hearing to resolve residential custody and the parenting schedule. In the
2 The 2-2-3 parenting plan called for defendant's parenting time every Monday and Tuesday; plaintiff's parenting time every Wednesday and Thursday; and for the parties to alternate parenting time on weekends from Friday through Sunday. 3 Defendant's other demands are not at issue here and will not be discussed.
A-0358-23 2 meantime, the order stated that: (1) both parties have a "right of first refusal,"
meaning if one party is unable to watch Mary for more than four hours during
their parenting time, then the other parent can watch her; (2) the parties must
agree to an alternating holiday and vacation schedule for watching Mary; and
(3) Mary must remain in her current daycare while the parties continue to reside
in the same household.
A plenary hearing was held over three days in April 2023 and July 2023
to determine parenting time, child support, physical custody, and counsel fees.
Between the hearing dates, on June 20, the trial court entered an interim
parenting time order in response to the parties' selling their jointly owned home
in Flanders. The trial court ordered a 2-2-3 parenting schedule, with neither
party being designated the PPR. Only the parties testified at the hearing.
Plaintiff testified that because the parties' seven-year relationship ended
and they no longer lived together, she wanted primary custody of Mary with
defendant having parenting time on alternate weekends because she did not
believe he could devote the time needed to care for their daughter daily. She
stated that when they lived together she provided ninety percent of Mary's daily
care when Mary was not in daycare. While defendant would ordinarily drive
Mary to daycare in the morning––a ten-minute drive from their home––plaintiff
A-0358-23 3 would pick her up after getting off work around 4:50 p.m. or 5:00 p.m. Once
home, plaintiff would bathe Mary, make her dinner, read to her, and prepare her
for bed.
Because the parties were selling their jointly owned home, plaintiff
planned to buy another house, but in the interim she would rent a three-bedroom
apartment in Wharton. She earned $129,398 a year, plus a bonus. On cross -
examination, plaintiff testified that her plans fell through, and she instead moved
to an apartment in Somerville. She remarked that she only became aware
defendant purchased a home in Newton due to his discovery response. She
approximated that their respective new residences are an hour's drive apart.
Thus, she felt it was practical to enroll Mary in a new daycare about fifteen
minutes away from her Somerville apartment.
Finally, as to the parties' relationship, plaintiff acknowledged their
communication is confined primarily to "minimal" texts and emails. She also
alleged domestic abuse, involving "harassing behavior," but chose not to report
the incidents to law enforcement because "[she] was afraid of the effects that it
would have on [defendant's] life." Despite the ending of their relationship, she
felt they could make decisions that were in Mary's best interests. For example,
A-0358-23 4 they agreed on Mary's vaccinations, pediatrician visits, and addressing her night
terrors.
Defendant testified he was formerly engaged to plaintiff. While he
initially requested primary custody of Mary, defendant now seeks equal
parenting time for Mary's benefit. Until about a week before the sale of their
home, he, plaintiff and Mary lived together.
Defendant stated he and plaintiff had a "division of labor . . . to make sure
[Mary's] needs were met." In the morning, plaintiff would wake up Mary, but
he would prepare her breakfast, occasionally help her get ready, and drive her
to daycare. Defendant attended Mary's daycare functions––except one––and
was familiar with her teachers and the staff. He recalled routinely spending
quality time with Mary, such as playing with slime and Play-Doh together, in
addition to coloring and reading. Defendant testified that he works as an
insurance manager and his employer "[is] very lenient and . . . let[s] us do what
we need to do for our kids." His 2023 annual salary was $125,000, not including
bonuses.
Defendant also has a teenage son, who lives with his mother in Florida.
He testified that Mary and her half-brother enjoy spending time together.
A-0358-23 5 Concerning disciplining their daughter, defendant said he and plaintiff are on
the same page and "try to be super patient with her."
Defendant testified that in March 2023, he bought a three-bedroom home
in Newton, approximately eighteen miles away from the parties' former home
and less than thirty minutes away from Mary's original daycare. However,
Mary's new daycare is an hour and twenty minutes away from his new home.
There, Mary has her own bedroom, as does his son for his temporary visits. He
said he bought furniture to replicate their previous home, painted a wall pink at
Mary's request, and explained that his home has a big backyard, is located on a
quiet street, and is in a kid-friendly neighborhood where kids play on the street.
Like plaintiff, defendant testified that even after they separated, efforts
were made to co-parent and maintain normalcy for Mary. For example, he stated
that he shares a Google Calendar with plaintiff to coordinate Mary's activities
and appointments, as well as utilizing Facetime for both parties to say goodnight
to her.
On July 31, 2023, the trial court entered a written order accompanied by
a written decision granting equal parenting time for the parties without
designating either party as the PPR and ordering them to follow a 2 -2-3
parenting plan. The court stressed that both parties were credible. Yet, it "[did]
A-0358-23 6 not find that [] [p]laintiff was responsible for [ninety percent] of [Mary's] care
like she testified and believes this figure to be an exaggeration given the shared
living arrangement, [] [defendant's] morning routine, and the Saturdays spent
with [] [d]efendant's family." The court's ruling turned on its determination of
Mary's "best interests" based on its weighing of the fourteen-factor test in
N.J.S.A. 9:2-4(c). V.C. v. M.J.B., 163 N.J. 200, 227-28 (2000).
Based on the record, the court determined most of the factors were in
equipoise. They were: factor one –– ability to communicate and agree about
Mary; factor two –– willingness to participate in parenting time and physical
custody; factor three –– strong relationship with Mary and her siblings; factor
five –– ensuring Mary's safety from physical abuse and lack of physical abuse
against each other; factor seven –– fulfilling Mary's needs; factor eight –– stable
home environment; factor ten –– fitness as parents; factor thirteen ––
employment responsibilities; and factor fourteen –– share only three-year-old
Mary. The court found following factors did not apply: factor four –– history
of domestic violence; 4 factor six –– Mary's preference for either parent due to
4 The trial court found no merit to plaintiff's allegations of defendant's "harassing behavior," noting they were unsubstantiated and lacked credibility given the absence of a police report, initiation of a temporary restraining order, or complaint filed with the Division of Child Protection and Permanency.
A-0358-23 7 her inability to reason given her young age; and factor nine –– the continuity
and quality of Mary's education, because of her age. See N.J.S.A. 9:2-4(c). As
to factor eleven, the court recognized that the parties live about forty miles apart,
amounting to approximately a one-hour drive without traffic. See N.J.S.A. 9:2-
4(c). And lastly, the court found only one factor weighed in favor of either
party, in this case, plaintiff: factor twelve –– plaintiff spent more quality time
with Mary on a daily basis by getting her dressed, prepared for daycare,
retrieving her from daycare, making dinner, and getting her ready for bed even
though defendant spent some quality time with Mary as well. See N.J.S.A. 9:2-
4(c).
Considering these factors, the court determined Mary's best interests were
served by her parents sharing custody. The court held "that each parent should
be equally involved in the day-to-day care of [Mary,] especially at this
developing stage in her life. The 2-2-3 parenting plan allows [Mary] to see
[them] throughout the week while the 5-day maximum schedule ensures that
[Mary] is not always in the car traveling between residences."
The court denied both parties' respective requests to be designated the
PPR. The court recognized the following factors are relevant to deciding PPR
status:
A-0358-23 8 the tasks performed by the primary caretaker of the children of divorce; the necessity that such primary caretaker receive most of the secondary caretaker's child support; and the necessity that such primary caretaker have the autonomy to decide how that child support ordered by the court is to be disbursed to provide for the basic needs of the children.
[Pascale v. Pascale, 140 N.J. 583, 612 (1995).]
The court reasoned that neither party should be the PPR because they both were
involved in Mary's meal preparation, daycare arrangements, and daily needs.
The court also emphasized that up until July 2023 they were living together.
Plaintiff appeals arguing:
POINT I
THE COURT FAILED TO PROVIDE ADEQUATE WEIGHT TO THE RELEVANT STATUTORY FACTORS PURSUANT TO N.J.S.A 9:2-4(c) AND FAILED TO MAKE ADEQUATE FINDINGS OF FACT WHEN IT AWARDED THE PARTIES EQUAL PARENTING TIME.
POINT II
THE COURT FAILED TO MAKE ADEQUATE FINDINGS OF FACT TO SUPPORT ITS CONCLUSION THAT NEITHER PARTY SHOULD BE DESIGNATED A PARENT OF PRIMARY RESIDENCE.
POINT III
THE COURT'S DECISION TO AWARD EQUAL
A-0358-23 9 PARENTING TIME AND TO NOT DESIGNATE A PARENT OF PRIMARY RESIDENCE ONLY SERVES TO FORCE FUTURE LITIGATION.
II.
Our review of a family court's findings in a custody dispute is limited
given they are "acutely fact-sensitive." Beck v. Beck, 86 N.J. 480, 490 (1981).
The findings are reviewed for an abuse of discretion "[b]ecause of the family
courts' special . . . expertise in family matters." N.J. Div. of Youth & Fam.
Servs. v. W.F., 434 N.J. Super. 288, 294 (App. Div. 2014) (alterations in
original) (quoting N.J. Div. of Youth & Fam. Servs. v. G.M., 198 N.J. 382, 396
(2009)). "The general rule is that findings by the trial court are binding on
appeal when supported by adequate, substantial, credible evidence." Cesare v.
Cesare, 154 N.J. 394, 411-12 (1998). The family court abuses its discretion
when a decision is "made without a rational explanation, inexplicably departed
from established policies, or rested on an impermissible basis." Flagg v. Essex
Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Imm.
& Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
It is well-established that custody disputes should be resolved in the best
interests of the child. M.J.B., 163 N.J. at 227-28. The primary considerations
are the child's "safety, happiness, physical, mental and moral welfare." Fantony
A-0358-23 10 v. Fantony, 21 N.J. 525, 536 (1956); see also P.T. v. M.S., 325 N.J. Super. 193,
215 (App. Div. 1999). As noted above, the fourteen factors set forth in N.J.S.A.
9:2-4(c) are evaluated to assess what custody arrangement is in the best interests
of the child. With these principles in mind, courts are granted "wide latitude to
fashion creative remedies in matrimonial custody cases." Beck, 86 N.J. at 485.
A trial court's designation of a specific parent as the PPR also entails a
best interest of the child inquiry. Bisbing v. Bisbing, 230 N.J. 309, 335 (2017).
Our Supreme Court has clarified, "[t]hat standard comports with our custody
statute, in which the Legislature unequivocally declared that the rights of parents
are to be equally respected in custody determinations and stated that custody
arrangements must serve the best interests of the child." Ibid. (citing N.J.S.A.
9:2-4). Moreover, "[a] number of the statutory best interests factors will be
directly relevant in typical relocation decisions and additional factors not set
forth in the statute may also be considered in a given case." Ibid.; see, e.g.,
Benisch v. Benisch, 347 N.J. Super. 393, 399, 401 (App. Div. 2002) (remanding
to the trial court because "while there may be bona fide reasons why plaintiff
should be designated as PPR . . . , those reasons are not apparent from the record
submitted to us, nor from the court's otherwise carefully constructed,
comprehensive opinion").
A-0358-23 11 III.
In reaching our decision, we need not re-evaluate each best interest of the
child factor detailed in the trial court's written decision. We conclude the trial
court thoroughly analyzed the statutory factors in making its custody decision,
but we part company with its decision not to designate a PPR. Given the
distance between the parties' residences and the practical implications
concerning Mary's forthcoming school enrollment, a PPR is warranted.
We do not evaluate plaintiff's contentions before us as they are outcome -
determinative whether the trial court erred by not designating a PPR. We,
however, share her perspective that the trial court neglected to properly consider
the significance of the parties' residential distance and the impact on Mary's best
interests. She argues that a PPR designation is appropriate because "the parties
will be residing in different counties . . . [with] different school districts" that
are "more than an hour driving distance" apart from one another. We agree.
Mary will turn five this summer and will be enrolled in school this
upcoming school year. The parties live more than an hour apart in different
counties, which under the current parenting plan would require one parent to
drive about an hour each way to retrieve Mary depending on her school's
location. Realistically, the failure to name a PPR only invites future litigation
A-0358-23 12 and a venue dispute if the parties are unable to reach an amicable decision.
Considering Mary's best interests for this new step in her childhood, the trial
court should consider all relevant factors and designate a PPR.
Accordingly, we vacate the trial court's order not to designate a PPR and
remand the matter for a plenary hearing to be held within sixty days of this
decision to determine who shall serve as the PPR. We express no view on the
outcome of that proceeding.
Vacated and remanded. We do not retain jurisdiction.
A-0358-23 13