Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

What Is A Parent of Primary Residence and Parent Of Alternative Residence?

In Lembeck v. Bauer, the New Jersey Appellate Division reviewed an appeal of a custody order from the Superior Court of New Jersey, Family Part of Burlington County. This order created, pursuant to their respective lawyers arguments, that a parenting schedule making the mother, Kami Bauer, the Parent of Alternate Residence, and made the father, John Lembeck, the Parent of Primary Residence. The parent of primary residence is the parent whose house the child spends most of his or her time, and generally where the child spends more than 50% of the overnights. If both parents share overnights equally, then the parent of primary residence is the parent who the child lives with while going to school. The parent of alternative residence, is the parent that the child lives with when not living in the primary house. The official definitions for both these terms come directly from the New Jersey Child Support Guidelines. The parent of primary residence is always the parent that receives child support, with the parent of alternative residence responsible for maintaining those payments on time. The parent of primary residence has a duty to keep the parent of alternative residence informed with what matters that could affect the child’s general welfare.

Kami and John started dating in 2007. They had a daughter together, named K.L., who was born in 2009. The couple lived together at John’s parent’s house both before and after K.I. was born. However, they ended their relationship in 2012, and Kami consequently moved out of John’s parent’s house. K.I. continued to live in John’s family home. Kami would visit during the day exercise her agreed-to parenting time at John’s family home. She moved in with an old boyfriend in May 2012. After this event, she tried to modify the unofficial parenting time arrangement between her and John. She wanted the court to give the majority of overnight parenting time to her. John objected to the motion, and in response filed an order to show cause, as well as a complaint for parenting time and custody on May 29, 2012. Kami filed a counterclaim for custody.

The parents tried mediation, but it proved unsuccessful. Then the issue went to trial. This trial would encompass ten days starting in September 2013 and ending in May 29, 2012. Eight witnesses were present and contributed testimony. The trial judge entered an opinion on August 8, 2014, and set forth the court’s conclusions of law and findings of fact within it.

According to the Family Part court of Burlington County, shared joint legal custody between the parents was in the best interest of the child. John was designated as the parent of primary residence and a parenting schedule was established. The parenting schedule allowed Kami to have parenting time with her child every alternate weekend. This would start on Thursday, after school, and continue till the following Monday morning. Kami would be responsible for picking-up up and dropping-off K.I. In regards to summer vacation time, Kami would get three back to back weeks and one extra week. She would have to let John know of the summer parenting time schedule ahead of time before the 15th of March of every year. John was required not to make any summer vacation with K.I. that would be in conflict with Kima’s schedule. This order was in accordance with the Standard Holiday Schedule used in Burlington County.

Kima appealed the order and argued that the trial court should have awarded her parent of primary residence, instead of John, and that the parenting time schedule was unequal and unfair. Moreover, she contended that the trial judge should have applied the legal doctrine of “tender years.”

The New Jersey Appellate Division’s power to review a custody order is limited. If the factual findings are reasonably supported by credible evidence, then an appellate panel must approve the custody order. Factual finds will not be reversed by an appellate judge unless they are so clearly unsupported by the evidence that they “offend the interest of justice.” Only New Jersey Family part courts have the authority and jurisdiction to order child custody decisions. The opinions of Family Part judges are given such great deference of their special expertise in family matters.

According to New Jersey Statute 9:2-4(f), courts have an obligation to specifically state for the factual record, the facts they use to justify any child custody order not agreed to by both parents. The New Jersey Appellate Division found that the trial judge conducted a sufficiently detailed and complete analysis of the factual record, and in fact made thorough findings. The record demonstrated that John and Kima were consistently unable to agree, communicate, and cooperate when it came to decisions about their daughter. Still, the trial judge recognized that either parent would, in general, give K.L. a good, stable, and safe home. Neither parent was found to be unfit, and both school districts would provide a comparable education. However, the facts indicated that Kima created “strained visitations”, but John had not once got in the way of Kima’s parenting time. Furthermore, even though Kima’s house might have given the child a more luxurious lifestyle, her father’s was a far more stable home because, she had lived there since she was born, her father had a stable job, and there was a family support structure, living with her grandparents, that she was used to.

According to the Family Part judge, the child was entitled to the benefit that comes from her parents sharing joint legal and physical custody. Both of them were good parents so joint custody was the most appropriate option. If the judge denied one parent of right to have a meaningful relationship, and equally participate in the child’s major life decision, it would be like taking away their parental responsibilities. K.L. deserved to have to functioning and capable parents available to her. There is a two part test for determining whether joint custody is appropriate. First, both parents must be physically and psychologically fit to handle the role of a parent. Second, both parents must be willing to accept custody. In this case both parents were in fact fit and willing to be a custodial parent.

The New Jersey Appellate Division found the trial courts custody order to be appropriate because, Kima was not being denied her right to a meaningful parental relationship. In fact, the Family Part’s child custody order was facilitating that purpose.  The appellate panel also dismissed Kima’s “tender years” doctrine which stated that she should automatically become the parent of primary residence because she is the mother. The tender years doctrine was a legal principle in family law popular only in the late nineteenth century. In common law, it presumes that during a child's "tender" years, generally under the age of four, the mother should have custody of the child. Today this doctrine is not really in practice. In the second half of the twentieth century, courts and legislatures began to reverse decisions and repeal laws that recognized the tender years presumption in favor of gender-neutral laws. In most states the best interests of the child are now the primary factors in child custody cases, and the primary caretaker is presumed to be the best parent to handle primary custody of a small child. Some state courts have gone so far as to hold that the tender years doctrine violates the Equal Protection Clause of the state constitution. The New Jersey Appellate Division stated that today there is not presumption that eight the mother or the father deserves custody at a fixed age. Therefore, the Family Part’s custody order was affirmed.

Please feel free to connect with my law firm if you face a child custody or parenting time issue.