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March 3, 2016


Submitted January 26, 2016 Decided

Before Judges Reisner and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FD-03-1428-12.

Law Offices of Schroll and Bowman, attorneys for appellant (Bryan C. Schroll, on the briefs).

John Lembeck, respondent pro se.


Defendant appeals from an August 2014 custody order establishing a parenting schedule, designating her Parent of Alternate Residence (PAR), and designating plaintiff Parent of Primary Residence (PPR). We affirm.

Plaintiff and defendant began a dating relationship in 2007. Their daughter, K.L., was born in 2009. The parties resided at plaintiff's parents' home prior to and after the birth of K.L. The relationship ended and defendant moved out in 2012.

Though the parties disagree as to the nature of their arrangement regarding the care and custody of K.L., the child remained in plaintiff's family's home, where defendant exercised her agreed-upon parenting time during the day. In early May, 2012, defendant moved to a residence with a former boyfriend, and in late May, sought to modify the informal parenting arrangement to assign her the majority of overnight parenting time. Plaintiff objected and filed an order to show cause and complaint for custody and parenting time on May 29, 2012. Defendant filed a counterclaim for custody.

After unsuccessful attempts at mediation, the matter proceeded to a trial spanning ten days between September 2013 and April 2014. The trial involved the testimony of eight witnesses. On August 8, 2014, the trial judge issued his opinion, setting forth the court's findings of fact and conclusions of law.

The court determined that it was in the best interest of the child for the parties to share joint legal custody of K.L., and designated plaintiff as the PPR and established the parenting time schedules as follows.

Defendant shall enjoy parenting time with K.L. every other weekend from Thursday after school through the following Monday morning. Pick-up and drop-off shall be accomplished by the Defendant. If there is no school on Defendant's pick-up Thursday, the child shall be picked up at Plaintiff's residence at or before 4 p.m. Thursday. If the child does not have school on drop-off Mondays, the child shall be dropped off at the Plaintiff's residence at or before 8 a.m. Monday.

During summer vacation from school Defendant shall enjoy three consecutive weeks and one additional week with the minor child. Defendant shall apprise Plaintiff, in writing, of the summer vacation schedule prior to March 15th every calendar year. Plaintiff shall not make plans for summer vacation with the child that is in conflict with Defendant's schedule.

. . . .

The Court orders adherence to the Burlington County Standard Holiday Schedule . . . .

This appeal followed.

On appeal, defendant asserts that the trial court erred by designating plaintiff as PPR and giving the parties unequal parenting time. She also asserts that the judge erred by not applying the "tender years" doctrine. We disagree.

Our review of a custody determination is limited. We must affirm the trial court's ruling if "the findings made could reasonably have been reached on sufficient credible evidence present in the record." Beck v. Beck, 86 N.J.480, 496 (1981) (citations omitted). Generally, the factual findings and legal conclusions of a trial judge will not be reversed on appeal unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interest of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

The decision concerning the type of custody arrangement is left to the sound discretion of the trial courts. Pascale v. Pascale, 140 N.J. 583, 611 (1995). On appeal "the opinion of the trial judge in child custody matters is given great weight." Terry v. Terry, 270 N.J. Super. 105, 118 (App. Div. 1994) (citations omitted).

N.J.S.A. 9:2-4(f) requires that the court "specifically place on the record the factors which justify any custody arrangement not agreed to by both parents." The trial judge conducted a detailed and thorough analysis of the record and made extensive findings utilizing the factors enumerated in N.J.S.A. 9:2-4(c) based on the testimony and evidence presented at trial. The judge found that the parties were historically unable to agree, cooperate, or communicate in matters relating to K.L., but found that either party would generally provide a safe, stable, home environment. The judge further found that the public school systems for each party's residence would provide a reasonably comparable education and that neither party would be unfit to parent K.L. The judge also found that defendant has created strained visitations, while defendant did not identify a single instance in which plaintiff had interfered with defendant's parenting time. The court found that while defendant's home might provide the child with a more luxuriant lifestyle, plaintiff has a stable home where he and K.L. have resided since birth, a secure job, and a family support structure that is known to the child.

In discussing his decision to grant joint custody, the court stated

[K.L.] is entitled to receive the benefit of having her parents share responsibility under a joint legal and physical custodial relationship . . . . To deny one parent the right to meaningfully participate and influence the major decisions of childhood is to divest them of their parental responsibilities. [Plaintiff] and [defendant] are both good parents. Their child is entitled to have the benefit of two capable functioning accessible parents.

The court also discussed the relevant two-prong test for the appropriateness of joint custody as a vehicle for time-sharing. "[Both] parents must be 'fit' that is, physically and psychologically capable of fulfilling the role of parent. In addition, they must each be willing to accept custody[.]" Beck, supra, 86 N.J. at 498 (citations omitted). Both parents were fit for custodial purposes and both willingly sought the responsibility concomitant to the role of custodial parent.

We reject defendant's contentions that the court did not make every effort to attain for the child the affection of both parents rather than one. K.L. is receiving the benefit of having parents share responsibility under a joint legal and physical custodial relationship; defendant is not being denied the right to meaningfully participate and influence major decisions of childhood. Indeed, these are the very factors the trial court used to support its order granting joint legal and physical custody. Our family courts are vested with the discretion to establish a parenting plan as they find necessary. Given the great deference afforded to the family court's legal conclusions, defendant fails to demonstrate error and we see no need to disturb the trial court's order. Cesare v. Cesare, 154 N.J. 394, 413 (1998); N.J.S.A. 2A:34-23.

We also disagree with defendant's additional contention that pursuant to the "tender years" doctrine she is the presumptive PPR. There is no mechanical presumption that either the father or the mother is entitled to custody at a fixed age. Ali v. Ali, 279 N.J. Super. 154, 168 (Ch. Div. 1994).

We have considered defendant's remaining arguments and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).



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