SIEDAH LEMON v. DONTE M. GRADY (FD-03-0257-20, BURLINGTON COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-0681-21
SIEDAH LEMON,
Plaintiff-Respondent,
v.
DONTE M. GRADY,
Defendant-Appellant.
_______________________
Submitted September 12, 2022 - Decided October 25, 2022
Before Judges Whipple and Mawla.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Burlington County,
Docket No. FD-03-0257-20.
Hegge & Confusione, LLC, attorneys for appellant
(Michael Confusione, of counsel and on the brief).
Respondent has not filed a brief.
PER CURIAM
Defendant Donte Grady appeals from an October 13, 2021 order of the
Family Part permitting plaintiff Seidah Lemon to remove the parties' son from
Maple Shade to Baltimore, Maryland. We affirm.
Plaintiff and defendant are the parents of a boy, who was eight years old
at the time of the plenary hearing. The parties have joint custody with plaintiff
as parent of primary residence and defendant as parent of alternate residence.
This matter began with defendant's motion for modification of the custody order
after plaintiff moved to Baltimore with the child without a court order granting
leave to relocate and, allegedly, without defendant's consent. The Family Part
judge ordered a plenary hearing to determine whether the move was in the child's
best interests and ordered that child support be suspended pending the hearing.
The plenary hearing was conducted remotely on October 13, 2021. Each
party offered their own testimony. Defendant testified that plaintiff moved with
their son without his knowledge or consent, stating: "I actually didn't find out
that she moved to Maryland from her. I found out from [my son], and she had
already moved to Maryland by the time I found out that she did, so I think . . .
there was no communication there as far as that situation."
Under the parties' parenting schedule prior to the relocation, as the parent
of alternate residence, defendant's parenting time was every Wednesday night,
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every Thursday night, and every other weekend, Saturday to Sunday afternoon.
Defendant has a two-bedroom apartment where the child has his own room. The
child had attended elementary school in Maple Shade, near defendant's
residence. Defendant asserted that, because plaintiff moved to Maryland, he
was too far away to continue as the parent of alternate residence under the same
visitation schedule.
Defendant asked the court not to permit the removal and stressed there
was more stability for the child in New Jersey where he had many family
connections. He asked the court to consider that the child would soon be
entering his teen years and needed to spend more time with his father.
Plaintiff testified that the child had lived in New Jersey his entire life
before she moved, first living in Burlington Township, then in Maple Shade
where he attended school. She acknowledged defendant's involvement in raising
their son but complained that "[defendant] has never had him full time."
Plaintiff told the court that the child "needs stability . . . but now you're trying
to remove him from being with me full time, which he's always been with me
full time." Plaintiff testified she lives in Baltimore with her sister, who works
from home. So, if she were not able to get to her son due to an emergency, her
sister or her sister's husband or other relatives would be available to care for
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him. She said that the child was in a good atmosphere in Maryland. Plaintiff
also testified that defendant does not routinely call the child or take interest in
the child's activities such as karate and jiu-jitsu.
Plaintiff explained that, during the pandemic, she was furloughed from
her job and encountered financial difficulties. She stated:
I start[ed] applying for jobs and the jobs were not . . .
as flexible [as] I needed because [the child] was not in
school, so I had to do virtual school with [him], and I
didn't have anybody to do virtual school with him. My
brother's wife, they have four kids already so that would
have been too much for me to ask her hey, can [my
child] go over there so he can do virtual school . . . with
you guys while I go to work. It would have been too
much to ask because she just had a new baby as well,
so I had to take that sacrifice with not working and
doing the virtual school with [him].
Plaintiff applied for other jobs until her sister told her about opportunities
in Baltimore. Plaintiff testified that she spoke with defendant
in May . . . and I told him look, I'm looking to move to
Maryland . . . and I told him and I said I was looking to
drop the child support case. He was like oh, all right,
thanks, I appreciate you, and I'm like all right. So then
we moved out here in June, the first week of June, and
I never dropped the child support case so he was upset
that I never dropped the child support case.
Plaintiff explained that she still wanted defendant to see the child every
other weekend and continue paying child support. She argued that the court
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should not give defendant primary custody and the move to Maryland was not
detrimental to her son or defendant.
The trial court agreed, stating:
I do find based upon [plaintiff]'s testimony that there
was cause in the best interest of [the child] to move to
Maryland in order to establish a better job for her and
also for her—for [the child] . . . . [B]ased upon the
analysis I've conducted, the testimony of [defendant],
the testimony of [plaintiff] and the factors of the
Bisbing[1] Court analysis, I believe . . . that the move
was in the best interests of [the child], he does have
support down there, he has cousins that treat him like
brothers. I don't find that if [the child] was ordered to
go back to New Jersey with [defendant] it would be in
his best interests. That would be a very big change for
him.
The court entered the October 13, 2021 order permitting the child to
remain in Maryland with plaintiff as parent of primary residence and defendant
as parent of alternate residence. On November 23, 2021, the court filed an
amplification of its decision, cited N.J.S.A. 9:2-2 and -4, and explained how the
factors identified under the statute supported the decision to permit relocation.
The court also entered a March 4, 2022 order for child support. This appeal
followed.
1
Bisbing v. Bisbing, 230 N.J. 309 (2017).
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On appeal, defendant asks us to reverse the order allowing plaintiff to
move with the child. He argues that the court erred in finding removal was in
the child's best interests and that, because plaintiff never sought leave of the
court before she relocated, the court should have denied permission to move
based on a violation of the initial custody order.
Our scope of review of Family Part orders is limited. Cesare v. Cesare,
154 N.J. 394, 411 (1998). We will not disturb the "'factual findings and legal
conclusions of the trial judge unless we are 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.'" Rova Farms Resort, Inc.
v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of
No. Bergen, 78 N.J. Super. 154, 155 (App. 1963)).
Substantial deference is owed to the Family Part's findings of fact because
of its special expertise in family matters. Cesare, 154 N.J. at 413. "Deference
is especially appropriate when the evidence is 'largely testimonial and involves
questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D.,
149 N.J. 108, 117 (1997)). A trial judge who observes witnesses and listens to
their testimony is in the best position to "make first-hand credibility judgments
about the witnesses who appear on the stand." N.J. Div. of Youth & Family
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Servs. v. E.P., 196 N.J. 88, 104 (2008). Thus, this court does not "'weigh the
evidence, assess the credibility of witnesses, or make conclusions about the
evidence.'" Mountain Hill, LLC v. Twp. of Middletown, 399 N.J. Super. 486,
498 (App. Div. 2008) (quoting State v. Barone, 147 N.J. 599, 615 (1997)).
Under N.J.S.A. 9:2-2, a parent who seeks to remove a child from this state
when the other parent does not consent must demonstrate "cause" for the
removal. The legislative intent of this statute was "'to preserve the rights of the
noncustodial parent and the child to maintain and develop their familial
relationship.'" Bisbing, 230 N.J. at 323 (quoting Holder v. Polanski, 111 N.J.
344, 350 (1988)).
In Bisbing, the Court interpreted "cause" under N.J.S.A. 9:2-2 as requiring
the petitioning parent to satisfy the best-interests analysis set forth in N.J.S.A.
9:2-4(c), "supplemented by other factors as appropriate." Id. at 338 (citing
N.J.S.A. 9:2-4(c)). In making "the sensitive determination of cause[, a court]
must weigh the custodial parent's interest in freedom of movement as qualified
by his or her custodial obligation, the State's interest in protecting the best
interests of the child, and the competing interests of the noncustodial parent."
Id. at 323 (internal citation omitted).
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Here, the trial judge appropriately applied the Bisbing standard and relied
on the factors enumerated in N.J.S.A. 9:2-4(c) in deciding the motion, as
explained in the court's amplification. He concluded:
1. The parents' ability to agree, communicate and
cooperate in matter relating to the child.
Historically, the parties have cooperated and
communicated regarding parenting time and matters
relating to the minor child. While [defendant] testified
that he did not consent to the child's relocation and that
he had no knowledge of the child's relocation until
[plaintiff] moved to Maryland, [plaintiff] credibly
testified that she verbally informed [defendant] that she
was moving and would not pursue child support.
[Plaintiff] believed that she had [defendant]'s consent
to move. After [plaintiff]'s move, she did not "drop"
child support, and [defendant] wanted to enforce the
verbal agreement the parties made.
2. The parents' willingness to accept custody and any
history of unwillingness to allow parenting time not
based on substantiated abuse.
Neither parent has withheld or frustrated the
other parent's ability to exercise parenting time. After
[plaintiff]'s move, [defendant] sought to enforce the
parties' prior parenting time arrangement under a prior
order.
3. The interaction and relationship of the child with its
parents and siblings.
Both parents have a good relationship with the
minor child. While the minor child does not have
siblings, the minor child has cousins with whom he
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resides in Maryland. The minor child has a close,
sibling-like relationship with his cousins.
4. This history of domestic violence, if any.
....
5. The safety of the child and the safety of either parent
from physical abuse by the other parent.
....
6. The preference of the child when of sufficient age
and capacity to reason so as to form an intelligent
decision.
At the time of the [p]lenary [h]earing, the minor
child was eight . . . years old and not of sufficient age
to reason so as to form such a preference.
7. The needs of the child.
....
8. The stability of the home environment offered.
The minor child has support and a family network
in Maryland. [Plaintiff] lives with her sister, her sister's
husband, and their children. [Defendant] testified that
he has family nearby, and the minor child has a good
relationship with his family. [Defendant] also testified
he has an aunt who lives fifteen minutes away and is
involved in the minor child. [Plaintiff] testified
credibly that prior to the child's move to Maryland,
[defendant]'s family did not provide support to the
child.
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The minor child is also involved in extra-
curricular activities, including [k]arate and [jiu-jitsu] in
Maryland.
9. The fitness of the parents.
....
10. The geographical proximity of the parents' homes.
Pursuant to a prior [c]ourt order dated August 26,
2021, the parties were meeting at a half-way point
between their homes for parenting time exchanges.
[Defendant] testified that it takes one to two hours to
drive to the halfway point, depending on the traffic, for
this parenting time.
11. The extent and quality of the time spent with the
child prior to or subsequent to the separation.
[The m]inor child has resided with [plaintiff]
since birth. Prior to [plaintiff]'s move to Maryland,
[defendant] exercised overnight parenting time on
Wednesdays and Thursdays, along with every other
weekend.
12. The parents' employment responsibilities.
[Plaintiff] faced financial hardship in New Jersey
and moved to Maryland to pursue employment
opportunities and to find a better job. [Defendant]
works fulltime in New Jersey.
13. The age and number of the children.
There is one minor child, age eight . . . .
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The trial judge concluded, based upon an analysis of the best-interests
factors pursuant to Bisbing, that there is "cause" to authorize the child's removal
to Maryland, and it was in his best interests. He additionally concluded that
returning the child to New Jersey and designating father as parent of primary
residence would not be in the best interests of the child. Returning him to New
Jersey would remove him from his school, extra-curricular activities, and
support network in Maryland. Further, the child never resided with father and
such a change would be disruptive and detrimental.
We reject defendant's argument that the trial court was barred from
permitting relocation pursuant to Dever v. Howell, 456 N.J. Super. 300, 303
(App. Div. 2018). In Dever, the plaintiff gave defendant less than one day's
notice about moving, and although the defendant objected, the plaintiff moved
to South Carolina without first obtaining an order permitting the removal. Id. at
302.
Defendant filed an order to show cause seeking custody
and the return of the children to New Jersey. The judge
found plaintiff knew the statute required that he obtain
an order permitting the removal before relocating to
South Carolina, but he removed the children anyway,
because he feared the court might grant defendant's
pending motion for overnight visits with the children.
After losing the trial, plaintiff sought reconsideration of
the order under review, and for the first time, requested
a best[-]interests analysis.
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We hold—because defendant had objected to the South
Carolina move—that N.J.S.A. 9:2-2 required plaintiff
to first obtain an order permitting the removal of the
children before the actual relocation. The time for the
judge to determine whether plaintiff had established
"cause" for the removal of the children would have been
before the relocation occurred. Requiring the judge to
analyze whether "cause" existed after the relocation
ignores the unambiguous plain text of the statute,
plaintiff's ultimate burden of proof to demonstrate
"cause" before the move occurs, and the important
Legislative purpose for requiring a showing of cause—
that is, to preserve the rights of a noncustodial parent to
maintain and develop her familial relationship.
[Id. at 302–03.]
Here, the court found plaintiff credibly believed she had defendant's
consent to move to Baltimore. We defer to that finding and discern no Dever
violation.
Defendant also argues the court erred in failing to attempt to ascertain the
child's wishes. The court found at the time of the plenary hearing "the minor
child was eight . . . years old and not of sufficient age to reason so as to form
such a preference."
Rule 5:8-6 reads in part as follows:
As part of the custody hearing, the court may on its own
motion or at the request of a litigant conduct an in
camera interview with the child(ren). In the absence of
good cause, the decision to conduct an interview shall
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be made before trial. If the court elects not to conduct
an interview, it shall place its reasons on the record.
[R. 5:8-6.]
The Rule annotation explains "R[ule] 5:8-6 now provides that the judge's
interview with the child is discretionary rather than mandatory irrespective of
the age of the child." Id. at cmt. 1.4.3.
We note neither party asked the court to interview the child and the court
did not see the need to order an interview on its own motion. New Jersey, like
other states,2 permits judges to consider the preference of a child in a custody
case, as long as the child is sufficiently mature. Indeed, based upon our survey
of the practices in other states, many states require the judge to consider a
mature child's opinion. New Jersey, like most states, leaves the decision to
2
California, New Mexico, and West Virginia presume children fourteen and older
are sufficiently mature. CAL. FAM. CODE § 3042(c) (West 2022); Stone v. Stone,
443 P.2d 741, 742 (N.M. 1968); W. VA. CODE § 44-10-4(a) (2022). Two states,
Indiana and Utah, give extra weight to the opinions of mature children. Holt v. State,
561 N.E.2d 830, 831 (Ind. 1990); UTAH CODE ANN. § 30-3-10(5)(b)(ii) (West 2022).
Mississippi, Oklahoma, Tennessee and Texas presume children twelve and older are
mature enough to form a preference worth examining. MISS. CODE. ANN. § 93-11-
65(1)(a) (West 2022); OKLA. STAT. tit. 43, § 113(c) (West 2022); TENN. CODE ANN.
§ 36-6-106(a)(13) (West 2022); TEX. FAM. CODE ANN. § 153.009(a) (West 2022).
Georgia law sets the age at eleven. GA. CODE ANN. § 19-9-3 (West 2022). No states
require a court to interview a child of eight or presume they are mature enough to
testify.
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judge's discretion as a factor to consider in the context of N.J.S.A. 9:2-4(c). See
Lavene v. Lavene, 148 N.J. Super. 267, 271–72 (App. Div. 1977).
Therefore, it was not a mistaken exercise of discretion for the court to
decline to interview an eight-year-old after its consideration of the relevant
factors in N.J.S.A. 9:2-4(c), given the child was "doing well[,]" was continuing
to see his father consistently every other weekend, and the lack of evidence
presented pointing to the necessity for an interview. In reaching this conclusion,
we do not suggest a court should never interview a young child. Rather, the
court should exercise discretion with appropriate reasoning as it did here.
Because the Family Part judge applied the correct legal standard and
statutory factors, and because his decision is supported by adequate, substantial,
and credible evidence in the record, we see no reason to disturb it.
Affirmed.
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