NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Defendant Heather Murphy appeals from a June 14, 2016 custody modification order allowing plaintiff Michael McHugh to relocate to the State of Florida with the parties' minor child. We affirm.
By way of background, the parties had a dating relationship that began in 2005. A child was born in 2007. At the time of the birth, the parties were living with plaintiff's parents. Eventually, the relationship deteriorated, and on August 26, 2009, the parties entered into a consent order to share joint legal and physical custody of the child. Pursuant to the order, the child would stay with defendant three nights a week, and with plaintiff the other four nights.
Initially, plaintiff and defendant agreed that they, together with the child and paternal grandparents, would move to Florida. After defendant became involved in a romantic relationship, she changed her position regarding the relocation plan and objected to the child's removal to Florida.
Given defendant's objection, plaintiff moved for removal of the parties' child. In response, defendant filed opposition and a cross-motion. Plaintiff then filed a reply certification.
A plenary hearing was held over six non-contiguous days. The hearing included the testimony of the parties, two experts, and both paternal grandparents. Both plaintiff and defendant testified relative to the nature of the custodial relationship. While plaintiff contended he was the parent of primary residence, defendant countered that the parties had a residential custody arrangement where each parent shared equally in parenting time and parenting decisions. Finding both parties credible, the judge determined that both parties assumed parental responsibilities and shared quality time with their child. Accordingly, the judge found the parties' parenting arrangement to be a "true shared" custodial relationship. As such, the applicable standard was the best interests of the child.
Plaintiff's expert psychologist, Dr. Lee Monday, opined that the parties did not share a true joint parenting relationship, that plaintiff was the parent of primary residence, and that the child would not suffer from the relocation. The court appointed expert psychologist, Dr. Erik Dranoff, testified that it would be in the child's best interest to remain in New Jersey and continue the joint custodial residential relationship. Dranoff acknowledged however that his opinion would have differed had he been aware that defendant initially agreed to the relocation, and that the child was advised that the family, including the grandparents, were moving to Florida.
Both Monday and Dranoff testified that plaintiff had a stronger bond with the child, but the child would benefit from continued contact with both parents on a regular basis. They also testified that the child had a close relationship with his paternal grandparents.
The paternal grandparents each testified regarding the family's plan to move to Florida. Plaintiff's father noted that he altered his original retirement plan to relocate to North Carolina after being advised by plaintiff and defendant that they were interested in moving to Florida.
At the conclusion of the hearing, the judge issued an oral decision granting custody to plaintiff, which was memorialized in an accompanying order. The judge denied defendant's motion for a stay pending appeal. Defendant filed a notice of appeal. Upon motion, we denied defendant's request for a stay.
Defendant raises the following arguments on appeal:
We have considered these arguments in light of the record and applicable legal standards. We affirm substantially for the reasons articulated by Judge Justine A. Niccollai in her comprehensive and thoughtful oral opinion. We add only the following.
"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence."
Preliminarily, the judge found, based on the parents' equal assumption of parental responsibilities, that the application was one for custody modification as opposed to one for removal.
"[T]he party seeking the change in the joint custodial relationship must demonstrate that the best interests of the child would be better served by residential custody being primarily vested with the relocation parent."
When "the parents cannot agree to a custody arrangement, the court may require each parent to submit a custody plan which the court shall consider in awarding custody."
"[T]he decision concerning the type of custody arrangement [is left] to the sound discretion of the trial court[.]"
Initially, the judge found plaintiff's decision to move to Florida constituted a substantial change in circumstances warranting modification as "the parties will be unable to continue with the true shared parenting arrangement." In arriving at the custodial determination, the judge then analyzed the relevant statutory factors.
Relying upon the testimony of the experts, the judge determined that plaintiff had a stronger bond with the child. Notwithstanding, the judge recognized the child would benefit from continued contact with both parents on a regular basis. Though noting the limited weight afforded to this factor, the judge also considered the child's desire to move to Florida. In reaching her decision, the judge found significant to her determination the issues with school tardiness and absenteeism during defendant's parenting time. The judge also found the testimony of both parties credible that, when involving the issue of education, the child was responsive to plaintiff's parenting techniques.
In sum, having considered the record as well as the weight we afford to custodial decisions made by Family Part judges, we discern no basis to disturb the decision to modify custody and to permit the relocation of plaintiff with the parties' child to Florida.
We next address plaintiff's motion. Defendant acknowledges that the disputed items in her appendix were not part of the trial record. We ordinarily do not consider evidentiary material not part of "the record developed before the trial court."
Finally, to the extent not specifically addressed herein, we conclude defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).