NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-2628-19
Submitted May 3, 2021- Decided July 8, 2021
Before Judges Messano and Smith.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FD-11-0839-19.
Juliana E. Blackburn, attorney for appellant.
Respondent has not filed a brief.
After a plenary hearing, defendant appeals a joint custody order granting
plaintiff parent of primary residence status for their child, D.G. 1 We affirm for
the reasons set forth below.
D.G was born on June 10, 2016 to the parties. After D.G.'s birth, the
parties planned to move to Florida for a fresh start and financial stability. On
November 13, 2017, the parties executed a relocation agreement which provided
for defendant and D.G. to relocate to Florida with plaintiff joining them later.
In December 2017, defendant and D.G. moved into defendant's mother's
house in Florida. D.G. had his own room, and defendant obtained health
insurance and a pediatrician for him. Plaintiff supported the child by sending
money. Defendant's mother and Plaintiff helped to pay for daycare. Initially,
defendant had a difficult time finding work in Florida, but eventually secured a
low-paying job. Between December 2017 and May 2018, plaintiff did not visit
defendant and D.G. in Florida and the parties' relationship began to deteriorate.
In May 2018, the parties separated, however, in the same month defendant
brought D.G. to New Jersey to live with plaintiff until she became financially
To protect the identity of the child, as well as the child's relationship to its
parents, we use initials throughout this opinion. Rule 1:38-3(d)(13).
stable. Once stable, defendant's intention was for her to come back to New
Jersey and get their child. After she returned to Florida, defendant maintained
contact with D.G. through phone and video phone calls. Eventually, defendant
found better employment, and when she visited D.G. in New Jersey, she took
the child back to Florida without plaintiff's consent. Plaintiff filed an order to
show cause seeking D.G.'s return. The trial court granted the relief and defendant
returned D.G. to New Jersey.
Defendant then filed a motion seeking to be named parent of primary
residence. After a hearing, the court granted plaintiff temporary residential
custody of D.G. Defendant then moved for modification of the temporary
residential custody order. She sought permission to return the child to Florida.
At the modification hearing, defendant testified she offered to provide
plaintiff food, clothing, and diapers and he responded with verbal abuse. She
further testified plaintiff did a poor job in nurturing a relationship between her
and the child and that plaintiff made mother-son communications difficult.
Plaintiff testified he was starting a moving company when defendant
brought him the child. He asserted raising D.G. while she was away hurt his
ability to run the business. He testified that defendant refused when he asked
her to take D.G. back. Plaintiff testified that he shut down his business because
he could not take care of D.G. and continue to manage it.
Once it was clear to plaintiff that defendant was not returning for the child,
he enrolled D.G. in school and obtained health insurance. He began to involve
D.G. in social activities with his New Jersey relatives.
By November 2018, defendant found a well-paying job as an occupational
therapist, and she informed plaintiff she was ready to take their child back.
Plaintiff was reluctant to return D.G. but defendant continued to pursue efforts
to bring D.G. back to Florida.
In February 2019, defendant visited D.G.; plaintiff conditioned the visit
on her promise not to take D.G. back to Florida. Defendant agreed, but she felt
since she had the relocation agreement, it wouldn't matter if she took D.G. with
her back to Florida. On February 3, defendant took D.G. back to Florida without
telling plaintiff. She did not tell plaintiff because, among other reasons, she was
afraid that he would try to stop her.
The trial court found both parties testified credibly. The court found a
change in circumstances occurred when defendant asked plaintiff to take the
child while she looked for work in Florida. The court found these circumstances
changed during the course of the child's life and the parties' relationship. The
court further found the original relocation agreement did not "carry much weight
anymore" and should not be enforced.
The court reviewed N.J.S.A. 9:2-4(c)'s fourteen factors. On the first
factor, the court found that the parties have an ability to communicate and
cooperate in matters relating the child, but there are also times they cannot do
so for themselves. On the second factor, the court found each parent willing to
accept custody, and that plaintiff was less than cooperative in providing
communication time for defendant. On the third factor, the court noted that
plaintiff made efforts to keep D.G. together with his half-brothers, for example,
taking D.G. and his two brothers to iPlay America, an amusement park. On the
fifth factor, the court found no "substantial history of domestic violence" and no
threat of physical abuse or threat to the safety of the child. On the sixth factor,
the court found D.G.'s preference did not apply because the child was not old
enough to have the capacity to form an intelligent decision. On the seventh
factor, the court found both parents can adequately care for D.G., including
handling D.G.'s ongoing dental issues. On the eighth factor, the court found that
both parents can provide a stable home environment. On the ninth factor, the
court found that both parents can provide for D.G.'s educational needs, noting
that plaintiff enrolled D.G. in pre-school in Princeton. On the eleventh factor,
concerning geographical proximity, the court found that both parents are fit, but
noted the distance between Florida and New Jersey made coordinating parenting
time difficult. On the twelfth factor, the court found that both parents spent
quality time with D.G. prior to and after their separation. On the thirteenth
factor, the court found that the parties are serious about their employment
responsibilities. On the fourteenth factor, the court found that D.G. would be
able to better maintain relationships with his brothers if he remained in New
The court further found those relationships would be better maintained by
plaintiff. The court noted "some concerns" with defendant dropping D.G. off to
plaintiff in New Jersey while she looked for employment in Florida. The court,
after observing defendant testify, found she had a "less passionate" attitude
about D.G. On January 17, 2020, at the conclusion of the hearing, the court
found changed circumstances. The court ordered joint custody of the child; that
plaintiff be the parent of primary residence; and that defendant be the parent of
alternate residence, finding this arrangement to be in the child's best interests.
On appeal, defendant raises the following points:
THE TRIAL COURT ERRED IN ITS DECISION
NOT TO ENFORCE THE PARTIES’ BINDING
THE TRIAL COURT ERRED IN NOT ENFORCING
THE PARTIES’ BINDING RELOCATION
AGREEMENT BECAUSE NO SUBSTANTIAL
EVENT OR ACTION OCCURRED BETWEEN THE
PARTIES CONSTITUTING CHANGE
THE TRIAL COURT ERRED IN RELYING ON ONE
OF FOURTEEN EQUALLY WEIGHTED BEST
INTEREST FACTORS AS THE BASIS FOR ITS
DECISION TO AWARD THE PLAINTIFF
Our review of a Family Part judge's fact finding is limited. N.J. Div. of
Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577 (App. Div. 2010)
(citing Cesare v. Cesare, 154 N.J. 394, 411 (1998)). "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.'" A.J. v.
R.J., 461 N.J. Super. 173, 180 (App. Div. 2019) (quoting Cesare, 154 N.J. at
411-12). "We do 'not disturb the "factual findings and legal conclusions of the
trial judge unless . . . convinced that they are so manifestly unsupported by or
inconsistent with the competent, relevant and reasonably credible evidence as to
offend the interests of justice."'" Gnall v. Gnall, 222 N.J. 414, 428 (2015)
(quoting Cesare, 154 N.J. at 412). However, we review legal determinations de
novo. See Slawinski v. Nicholas, 448 N.J. Super. 25, 32 (App. Div. 2016) (citing
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
Defendant argues the trial court erred by refusing to enforce the parties'
binding relocation agreement. Defendant also argues the court's decision
violates the public policy of encouraging parents to work together without court
intervention. We disagree.
In "custody cases, it is well settled that the court's primary consideration
is the best interests of the children." Hand v. Hand, 391 N.J. Super. 102, 105
(App. Div. 2007) (citing Kinsella v. Kinsella, 150 N.J. 276, 317 (1997)); see
also Bisbing v. Bisbing, 230 N.J. 309, 322 (2017) (citing Beck v. Beck, 86 N.J.
480, 496 n.8 (1981)) ("A custody arrangement adopted by the trial court,
whether based on the parties' agreement or imposed by the court, is subject to
modification based on a showing of changed circumstances, with the court
determining custody in accordance with the best interests standard of N.J.S.A.
9:2-4."). "The court must focus on the 'safety, happiness, physical, mental and
moral welfare' of the children." Ibid. (quoting Fantony v. Fantony, 21 N.J. 525,
N.J.S.A. 9:2-4(d) provides that courts must order custody arrangements
that both parents agree to unless it is not in the best interest of the child. N.J.S.A.
9:2-4(d). "Parties cannot by agreement relieve the court of its obligation to
safeguard the best interests of the child." P.T. v. M.S., 325 N.J. Super. 193, 215
(App. Div. 1999) (citing In re Baby M., 109 N.J. 396, 418 (1988)). "While
custody agreements should be taken into account by the court, a trial court must
determine whether the agreement is in the best interests of the children." Ibid.
(citing Wist v. Wist, 101 N.J. 509, 512-13 (1986)).
It is also well-settled that a party seeking modification of an existing
custody arrangement must demonstrate a change in circumstances. R.K. v. F.K.,
437 N.J. Super. 58, 62 (App. Div. 2014). To determine whether there are
changed circumstances, the court must consider the circumstances that existed
when the original custody order was entered. Sheehan v. Sheehan, 51 N.J.
Super. 276, 287-88 (App. Div. 1958). After considering those facts, the court
"may ascertain what motivated the original judgment and determine whether
there has been any change in circumstances . . . ." Id. at 288.
Defendant argues public policy encourages parties to enter agreements
without the involvement of the court, and the court runs afoul of this policy by
refusing to bind the parties to the agreement. We again disagree. The "courts'
commitment to enforce such agreements is tempered by its equitable power to
review and modify support and custody orders upon a showing of changed
circumstances." Slawinski, 448 N.J. Super. at 32.
We find no merit in defendant's argument that both parents believed the
relocation agreement was in the best interests of D.G. at the time and that his
stay in New Jersey with plaintiff was not a changed circumstance. The trial
court considered the original motivations of the parties in making the agreement
and the circumstances that existed at the time they made it. Sheehan, 51 N.J.
Super. at 287-88. The parents were in a relationship. Defendant was to take
D.G. to Florida to live with her mother while she looked for work in that state,
with plaintiff to follow later. D.G. and his parents formed a family unit at that
time. By the time defendant left their child with plaintiff in May of 2018, the
parents had terminated the relationship. Our review of the record reveals no
"factual findings and legal conclusions" that "are so manifestly unsupported by
or inconsistent with the competent, relevant and reasonably credible evidence
as to offend the interests of justice." Gnall, 222 N.J. at 428 (quoting Cesare,
154 N.J. at 412).
Finally, defendant argues that if changed circumstances exist under these
facts, then the trial court erred in relying solely on factor three to support its best
interest findings. Defendant further argues the trial court did not appropriately
weigh the other thirteen factors, "under which the deficiencies of [plaintiff's]
parental behavior and their detrimental impact on the child were clear."
When determining the custody, the court must consider the fourteen
factors in N.J.S.A. 9:2-4(c). 2 In custody cases, the court's focus is "to foster the
best interests of the child." R.K., 437 N.J. Super. at 62 (quoting Beck, 86 N.J.
at 497). Further, the court "must identify on the record the specific factors that
2 N.J.S.A. 9:2-4(c) provides fourteen factors a court must consider when
awarding custody and states in part:
In making an award of custody, the court shall
consider but not be limited to the following factors: the
parents' ability to agree, communicate and cooperate in
matters relating to the child; the parents' willingness to
accept custody and any history of unwillingness to
allow parenting time not based on substantiated abuse;
the interaction and relationship of the child with its
parents and siblings; the history of domestic violence,
if any; the safety of the child and the safety of either
parent from physical abuse by the other parent; the
preference of the child when of sufficient age and
capacity to reason so as to form an intelligent decision;
the needs of the child; the stability of the home
environment offered; the quality and continuity of the
child's education; the fitness of the parents; the
geographical proximity of the parents' homes; the
extent and quality of the time spent with the child prior
to or subsequent to the separation; the parents'
employment responsibilities; and the age and number
of the children.
justify" the court's decision. J.G. v. J.H., 457 N.J. Super. 365, 374 (App. Div.
2019) (quoting Bisbing, 230 N.J. at 322). In addition to "consider[ing] all
relevant factors set forth in N.J.S.A. 9:2-4(c)," the court may supplement those
factors "by other factors as appropriate." Bisbing, 230 N.J. at 338.
We find the trial court considered evidence in the record in light of the
statutory factors. It did not rely on factor three to the exclusion of all others.
After finding changed circumstances, the court specifically addressed factors
one, four, five, seven, eight, nine, ten, eleven, twelve, and thirteen, making
neutral findings or concluding the factors did not apply. Examining the record
through factors three and fourteen, the court noted plaintiff's effort to build and
maintain a relationship between the D.G. and his brothers in New Jersey and
"keep the family together." The court found that D.G., three and one-half years
old, would be better able to maintain familial ties with his siblings if he remained
with his father in New Jersey. As to factor two, the trial court commented on
the obvious acrimony between the parties, and specifically found plaintiff
uncooperative in facilitating parenting time between defendant and her child.
The court was clear that factors three and fourteen were substantial factors in
reaching its custody and parenting time decision.
The trial court supplemented its best interest analysis with findings on
other, non-statutory factors, including defendant's decision to leave the child
with plaintiff, and the length of time D.G. remained in New Jersey with plaintiff
while defendant searched for employment. Bisbing, 230 N.J. at 338.
"[A]s a general proposition, we should accord great deference to
discretionary decisions made by Family Part judges, provided they are supported
by adequate, substantial, and credible evidence in the record." D.A. v. R.C., 438 N.J. Super. 431, 451 (App. Div. 2014) (citation omitted). On this record, we
defer to the trial court's decision where the court evaluated the substantial and
credible evidence in the record in light of N.J.S.A. 9:2-4(c) and "other factors
as appropriate" in awarding joint custody to both parties and parent of primary
residence status to plaintiff. Bisbing, 230 N.J. at 338.