A.A. v. T.A

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                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4724-18T4

A.A.,1

          Plaintiff-Appellant,

v.

T.A.,

     Defendant-Respondent.
_________________________

                    Submitted October 27, 2020 — Decided November 13, 2020

                    Before Judges Mawla and Natali.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Morris County,
                    Docket No. FM-14-1201-17.

                    Tanya L. Freeman, attorney for appellant (Tanya L.
                    Freeman and Devon W. MacGillivray, on the briefs).

                    T.A., respondent pro se (Gregory D.R. Behringer, on
                    the brief).

PER CURIAM


1
    We utilize initials pursuant to Rule 1:38-3(d)(12).
      Plaintiff AA. appeals from a May 20, 2019 dual final judgment of divorce

awarding sole legal custody of the parties' son to defendant T.A. following a

trial. We vacate the award and remand for reconsideration.

      The parties were married for eleven years when plaintiff filed his

complaint for divorce. One child was born of the marriage, who was eleven

years old at the time of trial. Plaintiff's complaint for divorce sought joint legal

custody of the child, to designate plaintiff parent of primary residence, and to

establish a parenting time schedule. Defendant's counterclaim did not address

legal custody and sought only to designate her the parent of primary residence.

      In September 2017, the parties attended mediation with court staff who

prepared a memorandum of understanding (MOU) memorializing their custody

agreement. The MOU provided for: joint legal custody, designated defendant

parent of primary residence; established a parenting time, holiday, and vacation

schedule; and required the parties to encourage a relationship between the child

and the other party. In October 2017, defendant filed a domestic violence

complaint against plaintiff, alleging verbal harassment and terroristic threats.

Notably, an amended temporary restraining order (ATRO) issued later that

month listed no restraints relating to the child and established a parenting time

schedule for plaintiff.


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      In November 2017, a judge, not the matrimonial trial judge, tried the

domestic violence matter and granted defendant a final restraining order (FRO),

finding harassment. The record does not contain a transcript of the domestic

violence trial; however, the FRO maintained the parenting time schedule set

forth in the ATRO, issued no restraints regarding the child, and made no custody

determination. On December 11, 2017, the parties entered into a consent order

in the domestic violence matter granting plaintiff alternating weekend parenting

time from Friday until Monday and mid-week dinner parenting time on Tuesday

and Thursday pending a final resolution of the divorce.

      A three-day divorce trial occurred in April 2019. Each party and their

accounting experts testified. Prior to hearing testimony, the trial judge invited

counsel to give opening statements; plaintiff's counsel declined to do so, and

defendant's counsel spoke only regarding economic issues.             The parties'

testimony mostly involved the economic aspects of the case and had little to do

with custody. Neither party proffered evidence regarding custody or parenting

time beyond the following: the divorce complaint; the December 2017 consent

order; an amended FRO; and defendant's Rule 5:8-5 custody and parenting time

plan, which proposed "the parties share joint legal custody of the . . . child[.]"




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                                         3
      Each party submitted pre-trial memoranda.         Plaintiff's memorandum

stated: "[Plaintiff] seeks to follow the custody arrangement and parenting time

schedule set forth in the parties' [MOU.]"      Defendant's trial memorandum

addressed her position on custody by discussing the fourteen  N.J.S.A. 9:2- -4(c)

factors and posited as follows:

            In the instant matter, an award of joint legal custody is
            appropriate. Notwithstanding the parties['] personal
            acrimony and the deterioration of their marriage and the
            history of domestic violence, when it comes to the
            major decisions for the health, education and welfare of
            the child, which are generally rare in [occurrence] given
            the child's age, the parties have been able to act in the
            best interests of the child. [Defendant] is committed to
            continuing to do so, and to make major decisions jointly
            with [plaintiff].

      Plaintiff offered the following limited testimony regarding custody:

            PLAINTIFF'S COUNSEL: What custody and parenting
            time plan do you want to follow after the divorce? . . .

            PLAINTIFF: . . . I . . . have two days a week and one
            other week I have weekend and two days, but two days
            and five days is good.

            PLAINTIFF'S COUNSEL: . . . So you want to keep the
            schedule that you presently have?

            PLAINTIFF: I wish I can have him all the time.

Defendant's counsel did not cross-examine plaintiff on this testimony.



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                                       4
      Defendant's testimony regarding custody and parenting time focused more

on residential custody than on legal custody and was consistent with her

proposed custody and parenting time plan. She described how she was involved

with the child's schooling, activities, and medical and dental care, and purchased

his clothing.    Over plaintiff's counsel's hearsay objection, the trial judge

permitted defendant to testify to what the child said plaintiff told him. The judge

reasoned the testimony was admissible because it was "the plaintiff's statement.

The plaintiff can be . . . recalled to testify about the truth of those statements."

According to defendant, plaintiff allegedly told their child that he was "going to

kick [defendant] from the house. And [the child] told me if I'm going to leave

the house, I'm going to die. I told him never mind . . . I'm not going to leave

you." Defendant's counsel asked: "So does he ever say any nice things about

you to your son?" Defendant answered: "Nothing." Defendant also testified

plaintiff bought the child toy knives and guns, which she thought were

inappropriate.

      Defendant testified she wanted primary residential custody of the child.

Her testimony regarding legal custody was as follows:

            [DEFENDANT'S COUNSEL]: Okay, as far as joint
            custody is concerned, I explained . . . what that meant
            to you, that [plaintiff] would be able to participate in
            decisions concerning [your son] okay? So joint legal

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                                         5
            custody, but you want physical custody with him to live
            with you most of the time.

            [DEFENDANT]: Yes.

Defendant also testified she wished to maintain the parenting time schedule in

the parties' consent order, but wanted plaintiff not to involve the child in the

parties' disputes or disparage defendant to the child.

      Plaintiff's counsel did not cross-examine plaintiff regarding custody and

parenting time issues. Although plaintiff was recalled for rebuttal testimony,

counsel did not address custody or parenting time.

      Each attorney offered an oral summation.           Regarding custody and

parenting time, defendant's counsel stated: "I think we've already stipulated in

regard to custody and the parenting plan that is before . . . this [c]ourt ."

Plaintiff's counsel's summation on the subject was equally brief stating: "In

terms of custody and parenting time, that . . . issue was resolved. There's not a

dispute there."

      The trial judge issued a written decision. He recounted plaintiff sought

joint legal custody in his complaint for divorce and defendant "expressed a

willingness to share legal custody with [p]laintiff." He referenced the custody

and parenting time plan proposed by defendant. He noted plaintiff's testimony

on custody was comprised of

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             limited statements, [and p]laintiff provided no
             testimony with respect to his relationship with [the
             child], his involvement in [the child's] life prior to the
             filing of his divorce complaint or after, whether and
             how he meets [the child's] needs, his desire for custody,
             how he would managed the operation of his business
             and custody and expanded parenting time, or any other
             information to assist the court in evaluating the custody
             factors below.

The trial judge concluded, "[w]hile no single custody factor within  N.J.S.A. 9:2-

4 was dispositive, this court is persuaded that factors (1), (2), (3), (4), (5), (7),

(9), (11) and (12), . . . favor awarding sole custody to [d]efendant, and no factors

weigh materially against this determination."

      The judge's findings regarding the statutory factors persuasive regarding

sole custody were as follows:

             1. The parents' ability to agree, communicate and
             cooperate in matters relating to the child.

                    There was no[t] a lot of testimony provided on
             this subject; however, the court does observe that there
             is a[n FRO] in place, which prohibits generally contact
             or communication between the parties. It does not
             appear[] that there is any exception for communications
             regarding the child . . . . Rather, it appears that [the
             child] has a cell phone, and the parties communicate
             directly with the child. With respect to this factor, the
             court does note the following[:] The parties appear to
             disagree regarding the appropriateness of toys
             purchased by [p]laintiff for [the child], which include
             guns and knives. Further, the court finds credible
             [d]efendant's testimony that [p]laintiff involves the

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                                         7
child in the litigation and states things such as
[p]laintiff will kick [d]efendant out of the house.

2. The parents' willingness to accept custody and any
history of unwillingness to allow parenting time not
based on substantial abuse.

       Defendant's testimony reflected a stated desire
for custody, and more specifically to be designated as
the parent of primary physical custody. She also
acknowledged a willingness to share joint legal custody
with [p]laintiff. Aside from a statement by [p]laintiff
that he "wishes to have [the child] all the time,"
[p]laintiff made no affirmative or specific statement
regarding custody and he provided no material
information about his ability to exercise custody and
additional parenting time. There was no evidence
presented during trial that either party has been
unwilling to permit parenting time. In this context, it
must be noted that following the issuance of the initial
[TRO], [p]laintiff's parenting time was suspended.
Following the issuance of the [FRO], [d]efendant
consented to provide [p]laintiff with parenting time as
reflected by the December 11, 2017 consent order . . . .
There is no indication that the parties have failed to
follow or violated the . . . consent order regarding
parenting time.

3. The interaction and relationship of the child with its
parents and siblings.

       Plaintiff provided no information about his
interactions and relationship with [the child] or what, if
any, relationship [the child] has with his two half-
sisters. Defendant testified that she has a strong
relationship with [the child], she does everything with
[him] and that she "loves him and he is the only thing
in her life." Defendant testified that she is involved in

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                            8
all aspects of his life. She is engaged in [the child's]
education, attends his events and parent-teacher
conferences, she takes him to and supports him in his
activities, including swimming and music, and takes
him to all of his medical appointments. Defendant
knew the identity of both [the child's] teacher and
doctors.

4. The history of domestic violence.

      There exists a documented history of domestic
violence. In this regard, [d]efendant holds a [FRO]
against [p]laintiff, which was issued during the
pendency of this divorce litigation.

5. The safety of the child and the safety of either parent
from physical abuse by the other parent.

       While there was no evidence presented that
[p]laintiff subjected [the child] to physical abuse, the
existence and need for the [FRO] held by [d]efendant
against [p]laintiff reflects that [d]efendant is not safe
from further abuse by [p]laintiff.

      ....

7. The needs of the child.

       Plaintiff provided no testimony about [the
child's] needs or his ability to meet those needs.
Defendant testified that [the child] has no special needs.
Defendant has not worked outside of the home during
the entirety of the marriage and since [the child's] birth.
It was not disputed that [d]efendant has been the
primary caregiver for [the child] since birth. Based
upon     [d]efendant's     testimony     regarding     her
involvement       with     [the    child's]    education,
extracurricular activities and medical appointments, it

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                             9
appears that [d]efendant currently meets all of [the
child's] needs. Based upon the fact that there was no
evidence presented regarding [d]efendant's failure to
meet any of [the child's] needs in her role as the primary
caregiver, the court concludes that she has and can,
meet all of [the child's] needs.

      ....

9. The fitness of the parents.

        No evidence was presented regarding the fitness
of the parties. The court finds that [d]efendant is fit in
all material respects as a result of her acting as [the
child's] primary caregiver during the entirety of his life
without any documented incidents or concerns. While
there is no direct evidence that [p]laintiff is unfit as a
parent, the court is unable to definitively conclude that
he is a fit parent based upon the complete absence of
information provided to this court regarding: (i)
[p]laintiff's involvement in [the child's] life prior to the
filing of his divorce complaint; and (ii) the quality of
the time spent by [p]laintiff with [the child] both before
and after the divorce complaint filing date. In addition,
it is difficult to conclude that [p]laintiff is affirmatively
fit as a parent in light of the existence of a[n FRO].
Moreover, the court finds credible [d]efendant's claims
that [p]laintiff involves the child in the litigation and
states things to [the child] such as [p]laintiff will kick
[d]efendant out of the house.

      ....

11. The extent and quality of the time spent with the
child prior to and subsequent to the separation.

      Pursuant to a consent order, . . . [p]laintiff
currently has parenting time every other weekend from

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                            10
pick-up after school on Friday until Monday morning
drop-off at school . . . . In addition, [p]laintiff has
parenting time every Tuesday and Thursday from after
school until 8:00 p.m. when [p]laintiff drops-off [the
child] curbside at [d]efendant's home . . . . Plaintiff
failed to provide any testimony regarding the extent and
quality of time spent with [the child] prior to December
11, 2017. While it does appear that [p]laintiff has
exercised his parenting time following the December
11, 2017 consent order, he failed to provide any
testimony regarding the quality of time spent with [the
child] during his parenting time after December 11,
2017. Although [d]efendant's testimony was not overly
detailed, it does appear that she has been the primary
caretaker for [the child] since his birth and she is
involved in all aspects of his life, including academics,
extracurricular and medical needs.

12. The parents' employment responsibilities.

       Defendant does not work and has not worked
during the entirety of the parties' marriage. Defendant
is currently enrolled in college full-time and she
currently manages the parties' rental property . . . .
Defendant expressed a desire to obtain her college
degree so that she can work as an administrative
assistant. During the pendency of the divorce, it
appears that [d]efendant was able to attend college full-
time, manage the rental property . . . and tend to her
primary caretaking role for [the child].

       Plaintiff is [sixty-eight] years old and he
currently collects social security retirement benefits.
However, [p]laintiff also continues to operate [a
business]. While [p]laintiff has expressed a desire to
retire . . . in the near future, he did not cite any specific
plan for the sale or wind down of his business.
Moreover, while [p]laintiff testified that he worked

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                            11
     long hours in the past, he did not provide any testimony
     about his current work schedule. Rather, [p]laintiff
     indicates that [the business] currently has only two
     customers. Plaintiff also manages his rental properties
     . . . . He did not provide the court with any indication
     of the time requirements for managing the properties.
     On the basis of the foregoing, the court could not make
     any determinations regarding [p]laintiff's ability to
     assume custody or increased parenting time.

The judge concluded as follows:

     Notwithstanding [d]efendant's willingness to share
     joint legal custody, following an evaluation of the
     custody factors set forth in  N.J.S.A. 9:2-4, on the basis
     of Beck[ v. Beck,  86 N.J. 480 (1981)] . . . , this court
     finds that it is in the best interest of [the child] that
     [d]efendant be awarded sole legal and physical custody
     of [the child]. While this court recognizes that it may
     be unusual to award sole custody to [d]efendant,
     especially considering that she expressed a willingness
     to provide [p]laintiff with joint legal custody, the court
     is constrained to consider shared legal custody by the
     complete absence of information provided in support of
     an award of custody (shared or otherwise) to [p]laintiff.
     In this context, the court bases its decision on the
     following: (i) that the parties reached no firm
     agreement on custody prior to trial; (ii) there was an
     absolute and total absence of information provided to
     the court regarding the parties' ability to consult and
     agree on issues regarding the child; (iii) there exists a
     FRO      that    prohibits    generally     the    parties'
     communications; (iv) [p]laintiff provided no material
     testimony regarding his willingness and ability to
     exercise custody (legal or otherwise). As a result of the
     foregoing, the court looks solely to the custody factors
     to determine custody . . . .


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                                12
                   Despite concluding that [d]efendant should have
            sole custody of [the child], this court does acknowledge
            [d]efendant's expressed desire that [the child] have a
            relationship with [p]laintiff. Defendant expressed a
            willingness to maintain the current parenting time
            schedule within the . . . consent order and [p]laintiff
            also found that schedule acceptable.

      On appeal, plaintiff argues the award of sole legal custody to defendant

constituted an abuse of discretion because it was made without notice and

contrary to the parties' positions at trial. He argues the court did not address all

the  N.J.S.A. 9:2-4(c) factors and incorrectly assumed the parties could not

communicate because of the FRO, yet the history of the case showed otherwise.

Plaintiff argues the award of sole custody adversely impacts his ability to travel

internationally with the child and the ability to access school and medical

records.

      Plaintiff asserts he understood legal custody was uncontested because

defendant's proposed custody and parenting plan submitted prior to trial stated

she agreed to joint legal custody, she testified to joint legal custody, and did not

argue for sole custody in summation. Plaintiff argues there was no basis to

award sole legal custody and no evidence to demonstrate his unfitness despite

the domestic violence.




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                                        13
      "The general rule is that findings by the trial court are binding on appeal

when supported by adequate, substantial, credible evidence.           Deference is

especially appropriate 'when the evidence is largely testimonial and involves

questions of credibility.'"   Cesare v. Cesare,  154 N.J. 394, 411-12 (1998)

(internal citation omitted) (quoting In re Return of Weapons to J.W.D.,  149 N.J.
 108, 117 (1997)). "On the other hand, where our review addresses questions of

law, a 'trial judge's findings are not entitled to that same degree of deference if

they are based upon a misunderstanding of the applicable legal principles.'"

N.T.B. v. D.D.B.,  442 N.J. Super. 205, 215 (App. Div. 2015) (quoting N.J. Div.

of Youth & Fam. Servs. v. Z.P.R.,  351 N.J. Super. 427, 434 (App. Div. 2002)).

The standard of review for conclusions of law is de novo. S.D. v. M.J.R.,  415 N.J. Super. 417, 430 (App. Div. 2010) (citing Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan,  140 N.J. 366, 378 (1995)).

      In adopting  N.J.S.A. 9:2-4, our Legislature affirmatively stated:

            [T]hat it is in the public policy of this State to assure
            minor children of frequent and continuing contact with
            both parents after the parents have . . . dissolved their
            marriage and that it is in the public interest to encourage
            parents to share the rights and responsibilities of child
            rearing in order to effect this policy.

       N.J.S.A. 9:2-4(d) states: "The court shall order any custody arrangement

which is agreed to by both parents unless it is contrary to the best interests of

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                                       14
the child." We are unaware of precedent interpreting  N.J.S.A. 9:2-4(d), however

the Legislature's usage of the word "shall" signals its acknowledgement of the

primacy of parental autonomy to agree upon custody, while assuring the

authority of Family Part judges to protect the best interests of children. In other

matrimonial contexts, our case law is replete with similar principles. Indeed,

our Supreme Court has repeatedly held that

            [s]ettlement of disputes, including matrimonial
            disputes, is encouraged and highly valued in our
            system. Indeed, there is a strong public policy favoring
            stability of arrangements in matrimonial matters. This
            Court has observed that it is shortsighted and unwise
            for courts to reject out of hand consensual solutions to
            vexatious personal matrimonial problems that have
            been advanced by the parties themselves. Therefore,
            fair and definitive arrangements arrived at by mutual
            consent should not be unnecessarily or lightly
            disturbed.

            [Quinn v. Quinn,  225 N.J. 34, 44-45 (2016) (internal
            citations omitted).]

      The Court has stated: "Joint legal custody, meaning the 'authority and

responsibility for making 'major' decisions regarding the child's welfare,' is often

shared post-divorce by both parents . . . . Joint legal custody provides rights and

responsibilities to custodial parents, but it also confers rights with less

significant responsibilities to non-custodial parents." Pascale v. Pascale, 140



                                                                            A-4724-18T4
                                         15 N.J. 583, 596 (1995). Furthermore, "[i]n New Jersey, joint legal custody with

physical custody given to only one parent is much more common." Id. at 597.

      In cases where courts have awarded a party sole legal custody, the facts

were starker than those presented here. In Nufrio v. Nufrio, we upheld the trial

judge's award of sole legal custody where the judge found the father

                does nothing that is not for his own benefit, he cannot
                perceive how difficult he makes things for other people
                and does not believe that he has done wrong, in
                anything. He is one who believes his own lies.

                      ....

                       He is pathological in his testimony and he is
                totally unbelievable. His videotaping at the police
                station exchanges, his complaints to the State about day
                care and his multiple filings of litigation all appear to
                be an attempt to assert his dominance over his former
                wife.

                [ 341 N.J. Super. 548, 552-53 (App. Div. 2001).]

      We also noted the trial judge's findings the father never spoke to the

mother, laughed and smiled during her testimony, was unable to cooperate or

communicate with her and "reach even basic agreements" regarding the child.

Id. at 553. Citing Beck and Pascale, we concluded, although joint legal custody

is preferred,

                the findings of the judge make it clear that any form of
                "joint" custody or shared decision-making will be

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                                          16
            detrimental to the parties' child. The concern that the
            defendant would use the label of "joint legal custody"
            as a disguised attempt to harass plaintiff through
            repeated applications to the court has support in the
            record. Such a situation would clearly be detrimental
            to the best interests of the child.

            [Nufrio,  341 N.J. Super. at 555.]

      Here, both parties unquestionably agreed to joint legal custody.

Defendant testified to it, plaintiff did not oppose it, and both attorneys advised

the court the issue was resolved. The evidence supported neither the judge's

decision to reject the parties' agreement nor his statutory findings.

      At the outset, we note the dearth of evidence supporting the judge's

findings, which the judge acknowledged throughout his assessment of the

statutory factors. We hold, where a judge believes an issue as important as legal

custody is unsettled and is justiciable, the judge has a duty to inquire of the

parties whether this is the case. Pursuant to N.J.R.E. 101(a)(4), "[i]f there is no

bona fide dispute between the parties as to a relevant fact, the judge may permit

that fact to be established by stipulation or binding admission." Here, the record

does not support the conclusion the parties expected the judge to consider sole

legal custody. Although legal custody was clearly not in dispute, the judge

should have inquired during summations if there was any doubt in his mind.



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                                       17
      Even if there was an expectation the court would adjudicate legal custody,

the findings were inadequate.        The judge's evidentiary ruling permitting

defendant's testimony regarding what the child said plaintiff told him about

defendant was double hearsay and a misapplication of discretion. "We will only

reverse [an evidentiary determination] if the error 'is of such a nature as to have

been clearly capable of producing an unjust result.'" Ehrlich v. Sorokin,  451 N.J. Super. 119, 128 (App. Div. 2017) (quoting Parker v. Poole,  440 N.J. Super.
 7, 16 (App. Div. 2015)). Here, the judge reasoned plaintiff could repeat what

the child told her because "[i]t's the plaintiff's statement." However, the alleged

statement was not admissible pursuant to N.J.R.E. 803(b) because the child

neither testified nor was interviewed by the judge. This hearsay statement

clearly had the potential to lead to an unjust result because the judge relied upon

it in finding the first and ninth factors of  N.J.S.A. 9:2-4(c) dispositive of legal

custody.

      It was also an error not to interview the child. The judge addressed this

issue in his findings under the sixth statutory factor stating:

            The parties did not reference any preference on the part
            of [the child] regarding custody or that the current
            parenting time schedule be modified to provide more or
            less parenting time for one parent or the other. There
            also did not appear to be any material disagreement
            regarding either legal or physical custody of [the child],

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                                        18
            and the parties expressed no desire for the court to
            interview [the child] regarding his preference. Based
            on the foregoing, the court did not seek input from [the
            child].

      The sixth statutory factor requires the trial judge to consider "the

preference of the child [regarding custody] when of sufficient age and capacity

to reason so as to form an intelligent decision . . . ." A primary means of

ascertaining the child's preference is through an interview with the trial judge,

initiated either at a party's request or on the court's own motion. R. 5:8-6. If

the judge declines to interview a child, they must place their reasons on the

record. Ibid. A child interview is discretionary. See Pressler & Verniero,

Current N.J. Court Rules, cmt. on R. 5:8-6, (2020).

      Here, the judge stated the child's preference was not dispositive of the

legal custody issue and noted he did not interview the child because there was

no "material disagreement regarding . . . legal . . . custody[.]" However, the

judge made no finding regarding the child's preference, and the lack of an

interview prevented the judge from assessing the veracity of defendant's claim

that plaintiff had improper conversations with the child, as the judge concluded

in the first statutory factor. Also, an interview with the child would have enabled

the judge to better assess his relationship with both parties as required by the

third statutory factor, whether plaintiff met the child's needs pursuant to the

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                                       19
seventh factor, the ninth factor regarding parental fitness, and the eleventh factor

regarding the extent and quality of time the child spends with a parent.

      Next, we note there was little evidence supporting the judge's conclusion

that statutory factors four and five were dispositive of legal custody. The judge's

findings were that, by virtue of the existence of an FRO, defendant was "not safe

from further abuse by [p]laintiff." The judge also used the existence of the FRO

to assess the ninth factor and concluded it was "difficult to conclude that

[p]laintiff is affirmatively fit as a parent[.]"

      There is no doubt the judge could take judicial notice of the existence of

an FRO. N.J.R.E. 201(b)(4). Moreover, the Supreme Court has stated " there

is no such thing as an act of domestic violence that is not serious." Brennan v.

Orban,  145 N.J. 282, 298 (1996). Further, the Legislature has concluded there

is "a positive correlation between spousal abuse and child abuse; and that

children, even when they are not themselves physically assaulted, suffer deep

and lasting emotional effects from exposure to domestic violence."  N.J.S.A.

2C:25-18. However, custody awards in domestic violence proceedings to the

non-abusive parent are temporary.  N.J.S.A. 2C:25-29(b)(11).

      The relationship between the domestic violence and its effects on major

decision making and the award of sole legal custody was not evident on this


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                                         20
record. To be clear, we do not require a victim of domestic violence to re -live

the trauma of the domestic violence proceeding by testifying and enduring cross-

examination in the matrimonial matter to establish  N.J.S.A. 9:2-4(c) factors four

and five. However, at a minimum, we hold if the matrimonial judge did not try

the domestic violence matter, the judge must review the transcript or audio

recording of the domestic violence proceeding and correlate it to the custody

findings in the matrimonial matter.

      Finally, we see no connection between plaintiff's employment

responsibilities and the award of sole legal custody to defendant. According to

the judge, plaintiff testified he worked long hours, but did not provide "any

indication of the time requirements" associated with his work. It is not unusual

for parents to labor long hours to earn a living. At the age of sixty-eight, plaintiff

operates a business and manages rental properties; tasks we discern require a

modicum of skill and the ability to make decisions. We fail to see how these

facts rendered plaintiff incapable of participating in major decisions affecting

the child's health, education, and welfare.

      To summarize, the record did not support the award of sole legal custody.

For these reasons, we vacate the sole legal custody award and remand the matter

for reconsideration. On remand the judge shall conference the matter with the


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parties to determine whether they stipulate to joint legal custody. If the judge

nevertheless concludes he cannot accept the stipulation, he shall try the issue in

accordance with the guidance set forth in this opinion.

      Vacated and remanded. We do not retain jurisdiction.




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