SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4981-15T3

MICHAEL MCHUGH,

Plaintiff-Respondent,

v.

HEATHER MURPHY,

Defendant-Appellant.

______________________________

Submitted May 3, 2017 – Decided July 14, 2017

Before Judges Manahan and Lisa.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Passaic 

County, Docket No. FD-16-1923-09.

Cores & Associates, L.L.C., attorneys for 

appellant (Amy Sara Cores, on the briefs).

Weinberger Law Group, L.L.C., attorneys for 

respondent (Jessica Ragno Sprague, on the 

brief).

PER CURIAM

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.

NOT FOR PUBLICATION WITHOUT THE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.
2 A-4981-15T3

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 
3 A-4981-15T3

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. 
4 A-4981-15T3

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.

1

Defendant raises the following arguments on appeal:

POINT I

THE TRIAL COURT FAILED TO GIVE APPROPRIATE 

WEIGHT TO THE COURT APPOINTED EXPERT'S OPINION 

REGARDING THE BEST INTEREST OF THE CHILD AND 

INAPPROPRIATELY HELD THAT THE EXPERT'S 

OPINIONS WERE PREDICATED ON INACCURATE FACT 

FINDING.

POINT II

THE TRIAL COURT ERRED AS A MATTER OF LAW IN 

FAILING TO MAKE A FINDING THAT PRIMARY CUSTODY 

OF THE PARTIES' CHILD SHOULD BE PLACED WITH 

 

1 During the pendency of the appeal, plaintiff filed a motion to 

strike defendant's appendix for failure to comply with the court 

rules and a motion to require defendant to "submit an appendix in 

compliance with the court rules" and to require defendant "to 

remove any reference to the impermissible appendix portions within 

her brief." We reserved decision. (Motion No. M-3353-16).
5 A-4981-15T3

THE DEFENDANT-MOTHER OR THAT PHYSICAL CUSTODY 

SHOULD REMAIN EQUAL.

POINT III

THE TRIAL COURT FAILED TO PROPERLY APPLY THE 

STANDARD SET FORTH IN O'CONNOR2 AND MORGAN3 AND 

BASE RELOCATION ON THE BEST INTEREST OF THE 

CHILD.

POINT IV

THE TRIAL COURT MISAPPLIED ITS DISCRETION BY 

ALLOWING THE MOVE TO PROCEED UNDER THE BAURES4

STANDARD, WHERE THE COURT FOUND THAT THE 

PLAINTIFF AND HIS FAMILY WERE HOSTILE TO THE 

DEFENDANT AND THERE WAS EXPERT TESTIMONY THAT 

IT WAS NOT IN THE CHILD'S BEST INTEREST TO 

MOVE BASED ON THE CONCLUSION THAT THE 

PLAINTIFF-FATHER WOULD ALIENATE CHILD.

POINT V

THE TRIAL COURT FAILED TO SET FORTH IN ITS 

ORDER FULLY AND SPECIFICALLY ALL TERMS AND 

CONDITIONS RELATING TO THE AWARD OF CUSTODY 

AND PROPER SUPPORT FOR THE CHILD IN VIOLATION 

OF RULE 5:8-5(B). (NOT RAISED BELOW)

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.

 

2 O'Connor v. O'Connor, 349 N.J. Super. 381 (App. Div. 2002).

3 Morgan v. Morgan, 205 N.J. 50 (2011). 

4 Baures v. Lewis, 167 N.J. 91 (2001).
6 A-4981-15T3

"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." Cesare v. Cesare, 154 N.J. 394, 

411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. 

Co. of Am., 65 N.J. 474, 484 (1974)). Deference is particularly 

appropriate with respect to credibility determinations based on 

witness testimony, since the court had the ability to see and hear 

the witnesses, and with respect to family court fact-finding, due 

to "the family courts' special jurisdiction and expertise in family 

matters." Id. at 412-13. "Consequently, we 'should 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' or . . . 

determine the court has palpably abused its discretion." Parish 

v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare, 

supra, 154 N.J. at 412).

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. 

Morgan, supra, 205 N.J. at 64. In reaching this determination, 

the judge thoroughly analyzed the parenting arrangement and 
7 A-4981-15T3

assessed the involvement of each parent. We are satisfied that

the judge’s finding that the parties shared jointly both legal and 

physical custody of their child was supported by substantial, 

credible evidence in the record. As such, notwithstanding 

plaintiff's removal application, the judge was required to apply 

the standard employed for determining a change in custody. Id.

at 65.

"[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." O'Connor, supra, 349 N.J. 

Super. at 385. "The touchstone for all custody determinations has 

always been 'the best interest[s] of the child.'" Faucett v. 

Vasquez, 411 N.J. Super. 108, 118 (App. Div. 2009) (quoting 

Kinsella v. Kinsella, 150 N.J. 276, 317 (1997), certif. denied, 

203 N.J. 435 (2010)). "Custody issues are resolved using a best 

interests analysis that gives weight to the factors set forth in 

N.J.S.A. 9:2-4(c)." Hand v. Hand, 391 N.J. Super. 102, 105 (App. 

Div. 2007). The statute requires that

[i]n 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
8 A-4981-15T3

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.

[N.J.S.A. 9:2-4(c).]

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." N.J.S.A. 9:2-4(e). 

Lastly, when making "any custody arrangement not agreed to by both 

parents," the "court shall specifically place on the record the 

factors which justify" its order. N.J.S.A. 9:2-4(f).

"[T]he decision concerning the type of custody arrangement 

[is left] to the sound discretion of the trial court[.]" Nufrio 

v. Nufrio, 341 N.J. Super. 548, 555 (App. Div. 2001) (second and 

third alteration in original) (quoting Pascale v. Pascale, 140 

N.J. 583, 611 (1995)). Therefore, on appeal "the opinion of the 

trial judge in child custody matters is given great weight[.]" 
9 A-4981-15T3

Terry v. Terry, 270 N.J. Super. 105, 118 (App. Div. 1994) 

(citations omitted).

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.5 Pursuant to that analysis, the judge focused 

on the "quality, not necessarily the quantity of factors" weighing 

in favor of each party. 

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 

 

5 Although the judge acknowledged it was unnecessary to address 

the Baures factors, the judge found that in application of those 

factors, removal of the child to Florida would be appropriate. 

The Baures standard is only applicable in instances where the 

relocating parent is the parent of primary residence. See

O'Connor, supra, 349 N.J. Super. at 398.
10 A-4981-15T3

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." Davis v. 

Devereux Found., 209 N.J. 269, 296 n.8 (2012); see R. 2:5-4(a).

As such, finding no basis to deviate from the ordinary scope of 

our review, we grant plaintiff’s motion to strike those items from

the appendix. Consistent therewith, we have not considered those 

items in reaching our decision on the merits.

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).

Affirmed.