First of all here in New Jersey, the child custody lawyers at our law firm understand that every child deserves to have weekend (i.e., “fun”) time with each parent, respectively. Furthermore, it is important for both parents, absent extreme circumstances, to have weekend time with their child. All told, if one parent does not have any weekend time with school aged children then they become the “bad cop” during the school week while the other parent gets to be the “good cop” on fun weekends. This lawyer’s following analysis of a recent New Jersey appeal demonstrates how these attorneys made their respective arguments as to the issue.
In Fisher v. Szcyglowski, mother Melissa Fisher appealed an order of the Superior Court of New Jersey, Family Part of Burlington County dated January 8, 2015, that directed that each parent would share equal parenting time, on an alternating weekly basis, with their only child, Tom. Melissa argued that the father’s, Gregory Szcyglowski, parenting time should have actually been limited to Thursday through Sunday on alternating weeks. After reviewing the relevant legal principles and the factual record, the New Jersey Appellate Division affirmed the order of the Family Part.
When Tom was born in January 2014, the parents had been dating for about two years. At the time of the litigation, Melissa lived in New Jersey and Gregory lived in Maryland. Both the parents worked for the United States Navy. Melissa worked at a naval base in Philadelphia, and Gregory worked at a naval base in Maryland. Due to their respective maternity and paternity leave benefits, the parents were able to live together after Tom was born, until June 2014. From Tom’s birth until Gregory’s paternity leave ended in March 2014, the family lived in Melissa’s house. After Gregory resumed his job, the family lived together in his house in Maryland during the workweek, and in Melissa’s house on the weekends. As such, for about the first five months of his life, Tom was cared for by both parents who lived in the same household.
When Melissa’s maternity leave ended in June 2014, the parent’s relationship ended. Melissa filed a complaint for custody of Tom on July 10, 2014. Gregory filed a counterclaim on August 25, 2014, and sought legal and physical custody of Tom. The parents agreed on a temporary parenting time arrangement, pending the the custody hearing, where Gregory would have parenting time with Tom from Thursday through Sunday on alternative weeks. Gregory’s job schedule allowed him to take off every other Friday. The parenting time schedule lined up with the weeks when he worked only Monday through Thursday.
By the time of the hearing on December 9, 2014, Gregory had abandoned the request for physical custody, and now only wanted each parent to have equal parenting time. He suggested that each parent should have Tom on alternating weeks, with the baby being exchanged every Sunday. He wanted the child to spend an equal amount of time with each parent so that he could bond with both. Melissa was willing to share parenting time, but did not want Gregory to have equal parenting time. Instead she wanted to be the parent of primary residence, and Gregory to have parenting time every other week from Thursday to Sunday.
Melissa argued that her parenting time plan was better than Gregory’s proposed plan because, if he had the baby for a whole week, then Tom would have to be in daycare while Gregory was at work. She argued that attending daycare would be too disruptive to the child. Moreover, she claimed that if she was the parent of primary residence, her mother, Tom’s maternal grandmother, could watch over him while she worked. She argued that this arrangement should stay in place for the child’s stability. Melissa claimed she was also concerned that if the child was placed in daycare he would be exposed to other children’s germs. She also stated that she was concerned about the traveling Tom would have to do if each parent shared equal parenting on an alternate week basis. In addition, she argued that she had been Tom’s primary caretaker since his birth. Finally, she stated that she was still breastfeeding the baby, and as such parenting time should not be expanded for Gregory. Still the Family Part, in an order dated January 8, 2015, directed that each parent would share equal parenting time, on an alternating weekly basis. Melissa appealed.
On appeal, Melissa argued that the Family Part judge did not properly consider and apply the fourteen custody factors enumerated in New Jersey Statute 9:2-4(c). These factors include: (1) the ability of the parents to communicate, agree, and cooperate in matters that relate to the child; (2) each parent’s willingness to accept custody; (3) the relationship and interaction of the child with each parent; (4) any history of domestic violence; (5) the child’s safety, and the safety of either parent from physical abuse by the other; (6) the child’s preference is he or she is of sufficient age and has the mental capacity to reason and form an intelligent decision; (7) the child’s needs; (8) the stability of the offered home environment; (9) the continuity and quality of the child’s education; (10) each parent’s fitness; (11) the proximity of the parent’s homes; (12) the quality and extent of the time each parent spent with the child before the separation; (13) the employment responsibilities of each parent; and (14) the age and number of each of the children.
The New Jersey Appellate Division noted that several of the factors did not apply because they pertained to certain issues that neither parent raised during the hearing and were irrelevant to the specific facts of the case. As such, the Family Part judge’s decision not to address them had no bearing on this case and therefore did not warrant a reversal. The appellate panel explained that both parents were willing to accept custody, and no evidence existed that either parent was not willing to allow the other parent to have parenting time. Nor was there any evidence that either parent’s relationship with the child had been inappropriate. Actually, Melissa admitted that Gregory was a good parent. Also, there was no evidence of domestic violence. Nor was there any evidence that either parent could not meet the child’s needs or the either parent’s home environment was unstable.
In relation to the parent’s employment responsibilities, both of them worked full time. Gregory worked from Monday through Thursday which allowed him to personally care for the child on the Fridays the child would be with him. The judge touched upon Melissa’s concerns about germs in daycare and stated that that the child could not be kept in a bubble.
In regards to the eleventh factor in New Jersey Statute 9:2-4(c) about the geographical proximity of the parent’s homes, the appellate panel explained that the Family Part judge noted that the distance complicated the issue. Sill, the judge found that the complications could be surmounted. Moreover, Melissa did not argue that the distance between the parents made the parenting time impossible. She merely argued that it would be more stressful for the child to travel from one home to the other every Sunday than to travel every other Thursday. The Family Part judge rejected that argument, because the same number of trips would be required under either option.
As to the last factor about the extent and quality of the time each parent spent with the child before the separation, the appellate panel found that Tom was only eleven months old at that time. Still, both parents had cared for the baby during the first two months of his life. Unfortunately, Gregory’s paternity leave was not as long as Melissa’s, but until her leave ended they all lived together as a family. Even though after the separation, Melissa spent more time with the child, the Family Part judge correctly determined that such a fact was not relevant under the circumstances. As such, the New Jersey Appellate Division affirmed the order of the Family Part.