RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3918-15T2
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
J.J.,
Defendant-Appellant,
and
J.B. and T.M.,
Defendants. ____________________________
IN THE MATTER OF S.B., M.B., and E.B.,
Minors. ____________________________
Argued October 4, 2018 – Decided March 1, 2019
Before Judges O'Connor, Whipple and DeAlmeida. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-0136-14.
John L. Weichsel argued the cause for appellant.
Victoria Kryzsiak, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Jason W. Rockwell, Assistant Attorney General, of counsel; Victoria Kryzsiak, on the brief).
Olivia Belfatto Crisp, Assistant Deputy Public Defender, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Olivia Belfatto Crisp, on the brief).
PER CURIAM
Defendant J.J. (father) appeals from the March 8, 2016 order denying his
application for physical custody of his son, E.B. (Eric), presently age
fourteen.1 Defendant J.B. (mother) is Eric's mother. After reviewing the
record and applicable legal principles, we affirm in part, reverse in part, and
remand for further proceedings.
I
Plaintiff New Jersey Division of Child Protection and Permanency
(Division) has been involved with the parties for a number of years, which has
1 We use initials and pseudonyms to protect the privacy of the parties and their son. A-3918-15T2 2 included investigating allegations of abuse and neglect pertaining to Eric and
the mother's three children from another relationship, Eric's half-siblings.2
Eric is the father's only child. The mother, Eric, and Eric's half-siblings have
lived in the same household from the time of Eric's birth.
Eric has significant emotional problems and is deemed emotionally
disturbed. He has an anxiety disorder that has been determined to be severe
and causes him to experience, among other things, separation anxiety. He
attends a school for children who have emotional difficulties. In 2013, the
Division received referrals about the children's hygiene, their chronic tardiness
at school, and the mother's mental health. The Division investigated and
established both parents had committed acts of neglect. The Division provided
in-home services to the mother to assist her with parenting.
In July 2013, the father filed a complaint seeking custody of Eric.
Among other things, the father alleged the mother alienated Eric from him. Up
until 2013, the father enjoyed regular and frequent parenting time with his son.
In October 2013, the Division filed an order to show cause and complaint for
care and supervision of Eric and his three half-siblings.
2 Defendant T.M. is the father of Eric's half-siblings. The claims against T.M. are not the subject of this appeal. A-3918-15T2 3 The court granted the order to show cause, which included directing that
Eric remain in the mother's physical custody because he had become
increasingly resistant to seeing his father. Evaluations of the parties and
children and various services designed to restore Eric's relationship with his
father were ordered. However, Eric steadfastly refused to engage in visitation
with his father over the next three years. The Division attempted supervised
visitation of the father and Eric, but to no avail. According to a Division
worker, during one such visit, the child was "sobbing" and appeared to be "in
torture."
In August 2014, the court suspended the father's obligation to pay the
mother child support in an effort to induce her to cease alienating Eric from
the father and to encourage her to facilitate parenting time between them. The
court subsequently modified that order, directing half of such child support be
paid to the mother and the other half deposited into a trust account.
In December 2014, the court commenced a hearing on the father's
application for physical custody of Eric, which was conducted on sporadic
dates throughout 2015 and concluded in January 2016. During the hearing
various experts testified. All agreed the mother had alienated the child from
the father; the issue was whether the appropriate remedy was to transfer Eric to
A-3918-15T2 4 his father's physical custody. The father's expert, Linda J. Kase, L.C.S.W.,
opined the only remedy was to transfer Eric to the father's sole physical and
legal custody, and sever all contact between the mother and child until the
mother had engaged in therapy with an "alienation aware" therapist and the
therapist certified the mother understood her conduct had constituted chi ld
abuse. Kase did not meet with and examine Eric.
Other experts testified Kase's recommendation was too extreme in light
of Eric's mental health problems, and instead recommended continued therapy
and gradual exposure to the father to help Eric overcome his reluctance to
interact with him. One of those experts was Eric's therapist, William M. Shea,
III, Ph.D., who testified transferring custody of Eric to his father would be
"traumatic" for Eric and send him into "a total panic," because Eric would be
separated from his mother and siblings. Shea was also concerned Eric may run
away if placed in his father's home, which would be especially problematic
because the father lives in Maryland. However, Shea also testified the child
was progressing in therapy and was able to tolerate discussing his father, when
in the past he had refused to do so. Shea was also of the opinion it was time to
"turn up the pressure a little bit on [Eric]."
A-3918-15T2 5 Psychiatrist Sonia Oquendo, M.D., agreed with Kase's assessment the
mother sabotaged the relationship between the father and child. Oquendo
acknowledged she is not an expert in alienation, but did render – and there was
no evidence she was without expertise to do so – the following opinion. After
examining Eric, she determined he would experience "tremendous anxiety" if
forced to live with his father. Being separated from his mother, siblings,
therapist, and current school would be a "trauma-like experience." To relieve
his anxiety, Eric might run away or engage in conduct potentially dangerous to
himself. She recommended a gradual approach to reestablishing a relationship
with the father, starting with texting, telephone conversations, and then visits.
At the conclusion of the hearing, the court found the mother had engaged
in conduct designed to alienate Eric from his father. However, the court
accepted and relied upon the testimony of those experts who concluded Eric 's
mental health problems precluded him from being placed in his father's
immediate custody, given Eric would suffer significant anxiety and trauma,
and might engage in conduct that would be injurious to himself. Therefore,
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RECORD IMPOUNDED
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-3918-15T2
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
J.J.,
Defendant-Appellant,
and
J.B. and T.M.,
Defendants. ____________________________
IN THE MATTER OF S.B., M.B., and E.B.,
Minors. ____________________________
Argued October 4, 2018 – Decided March 1, 2019
Before Judges O'Connor, Whipple and DeAlmeida. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-0136-14.
John L. Weichsel argued the cause for appellant.
Victoria Kryzsiak, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Jason W. Rockwell, Assistant Attorney General, of counsel; Victoria Kryzsiak, on the brief).
Olivia Belfatto Crisp, Assistant Deputy Public Defender, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Olivia Belfatto Crisp, on the brief).
PER CURIAM
Defendant J.J. (father) appeals from the March 8, 2016 order denying his
application for physical custody of his son, E.B. (Eric), presently age
fourteen.1 Defendant J.B. (mother) is Eric's mother. After reviewing the
record and applicable legal principles, we affirm in part, reverse in part, and
remand for further proceedings.
I
Plaintiff New Jersey Division of Child Protection and Permanency
(Division) has been involved with the parties for a number of years, which has
1 We use initials and pseudonyms to protect the privacy of the parties and their son. A-3918-15T2 2 included investigating allegations of abuse and neglect pertaining to Eric and
the mother's three children from another relationship, Eric's half-siblings.2
Eric is the father's only child. The mother, Eric, and Eric's half-siblings have
lived in the same household from the time of Eric's birth.
Eric has significant emotional problems and is deemed emotionally
disturbed. He has an anxiety disorder that has been determined to be severe
and causes him to experience, among other things, separation anxiety. He
attends a school for children who have emotional difficulties. In 2013, the
Division received referrals about the children's hygiene, their chronic tardiness
at school, and the mother's mental health. The Division investigated and
established both parents had committed acts of neglect. The Division provided
in-home services to the mother to assist her with parenting.
In July 2013, the father filed a complaint seeking custody of Eric.
Among other things, the father alleged the mother alienated Eric from him. Up
until 2013, the father enjoyed regular and frequent parenting time with his son.
In October 2013, the Division filed an order to show cause and complaint for
care and supervision of Eric and his three half-siblings.
2 Defendant T.M. is the father of Eric's half-siblings. The claims against T.M. are not the subject of this appeal. A-3918-15T2 3 The court granted the order to show cause, which included directing that
Eric remain in the mother's physical custody because he had become
increasingly resistant to seeing his father. Evaluations of the parties and
children and various services designed to restore Eric's relationship with his
father were ordered. However, Eric steadfastly refused to engage in visitation
with his father over the next three years. The Division attempted supervised
visitation of the father and Eric, but to no avail. According to a Division
worker, during one such visit, the child was "sobbing" and appeared to be "in
torture."
In August 2014, the court suspended the father's obligation to pay the
mother child support in an effort to induce her to cease alienating Eric from
the father and to encourage her to facilitate parenting time between them. The
court subsequently modified that order, directing half of such child support be
paid to the mother and the other half deposited into a trust account.
In December 2014, the court commenced a hearing on the father's
application for physical custody of Eric, which was conducted on sporadic
dates throughout 2015 and concluded in January 2016. During the hearing
various experts testified. All agreed the mother had alienated the child from
the father; the issue was whether the appropriate remedy was to transfer Eric to
A-3918-15T2 4 his father's physical custody. The father's expert, Linda J. Kase, L.C.S.W.,
opined the only remedy was to transfer Eric to the father's sole physical and
legal custody, and sever all contact between the mother and child until the
mother had engaged in therapy with an "alienation aware" therapist and the
therapist certified the mother understood her conduct had constituted chi ld
abuse. Kase did not meet with and examine Eric.
Other experts testified Kase's recommendation was too extreme in light
of Eric's mental health problems, and instead recommended continued therapy
and gradual exposure to the father to help Eric overcome his reluctance to
interact with him. One of those experts was Eric's therapist, William M. Shea,
III, Ph.D., who testified transferring custody of Eric to his father would be
"traumatic" for Eric and send him into "a total panic," because Eric would be
separated from his mother and siblings. Shea was also concerned Eric may run
away if placed in his father's home, which would be especially problematic
because the father lives in Maryland. However, Shea also testified the child
was progressing in therapy and was able to tolerate discussing his father, when
in the past he had refused to do so. Shea was also of the opinion it was time to
"turn up the pressure a little bit on [Eric]."
A-3918-15T2 5 Psychiatrist Sonia Oquendo, M.D., agreed with Kase's assessment the
mother sabotaged the relationship between the father and child. Oquendo
acknowledged she is not an expert in alienation, but did render – and there was
no evidence she was without expertise to do so – the following opinion. After
examining Eric, she determined he would experience "tremendous anxiety" if
forced to live with his father. Being separated from his mother, siblings,
therapist, and current school would be a "trauma-like experience." To relieve
his anxiety, Eric might run away or engage in conduct potentially dangerous to
himself. She recommended a gradual approach to reestablishing a relationship
with the father, starting with texting, telephone conversations, and then visits.
At the conclusion of the hearing, the court found the mother had engaged
in conduct designed to alienate Eric from his father. However, the court
accepted and relied upon the testimony of those experts who concluded Eric 's
mental health problems precluded him from being placed in his father's
immediate custody, given Eric would suffer significant anxiety and trauma,
and might engage in conduct that would be injurious to himself. Therefore,
because it was not in Eric's best interests, the court denied the father's
application for physical custody, entering an order to that effect on March 8,
2016. It is from this order the father appeals.
A-3918-15T2 6 In addition, the order suspends the father's obligation to pay child
support to the mother. Instead, the father must deposit the child support
payments that would have otherwise gone to the mother into an interest-
bearing account. The money in such account is to be used for Eric's post-
secondary education but, if Eric does not visit his father by his senior year in
high school the father may, at his discretion, withhold such funds from Eric.
II
On appeal, the father raises the following points for our consideration:
POINT I - ALLOWING ALIENATING PARENT TO RETAIN SOLE CUSTODY WAS ABUSE OF DISCRETION; COURT OVERLOOKED CONTINUING EMOTIONAL AND PHYSICAL ABUSE OF CHILD.
POINT II - COURT ABUSED DISCRETION IN RELYING SOLELY ON EXPERTS TO DETERMINE CUSTODY; EXPERTS AGREED CUSTODY TRANSFER MIGHT BECOME NECESSARY.
POINT III - COURT ABUSED DISCRETION IN OVERLOOKING FACTORS UNDER N.J.S.A. 9:2- 4(C), I.E., DYSFUNCTIONALITY OF HOME, FATHER'S FITNESS, PRIOR RELATIONSHIP AND ABUSE OF CHILD.
POINT IV - COURT FAILED TO ENFORCE ORDERS AGAINST ALIENATING PARENT WHO WAS IN CONTINUOUS CONTEMPT.
A-3918-15T2 7 POINT V - ORDER CUTTING OFF CHILD SUPPORT WAS INEFFECTUAL WHERE IT PREVIOUSLY FAILED TO RESTORE VISITATION WITH FATHER; COURT SHOULD HAVE MAXIMIZED VISITATION.
POINT VI - COURT ERRED IN APPLYING NON- BINDING NEW YORK LAW WHILE DEVIATING FROM NEW JERSEY ALIENATION CASES. (Not raised below).
POINT VII - IN FAILING TO PROVIDE ANY REMEDY, COURT EFFECTIVELY TERMINATED FATHER'S RIGHTS, DEPRIVING HIM OF CONSTITUTIONALLY MANDATED RELATIONSHIP WITH CHILD.
Appellate review of family court decisions is limited. N.J. Div. of
Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). "[F]indings by [a]
trial court are binding on appeal when supported by adequate, substantial,
credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover,
"[b]ecause of the family courts' special jurisdiction and expertise in family
matters, appellate courts should accord deference to family court factfinding."
Id. at 413; see also F.M., 211 N.J. at 448 (noting the cold record may not
adequately convey what happens in a courtroom). Such deference is especially
warranted when custody issues are present. See Abouzahr v. Matera-
Abouzahr, 361 N.J. Super. 135, 157 (App. Div. 2003) (citing DeVita v.
DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976)).
A-3918-15T2 8 A trial court's conclusions on custody are "entitled to great weight and
will not be lightly disturbed on appeal." DeVita, 145 N.J. Super. at 123 (citing
Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div. 1951)). Of course,
deference is not appropriate if the trial court's findings "went so wide of the
mark that a mistake must have been made." N.J. Div. of Youth & Family
Servs. v. M.M., 189 N.J. 261, 279 (2007).
After reviewing the record and applicable legal principles, for
substantially the reasons set forth in its comprehensive written opinion, we
affirm the trial court's decision to reject the father's application for custody.
The court placed "great weight" upon the testimony of those experts who
warned against removing the child from his mother's physical custody. The
court had the discretion to rely on these experts' opinions to inform its
decision. See Bisbing v. Bisbing, 230 N.J. 309, 336 (2017) (noting courts rely
heavily on the expertise of psychologists and other mental health professionals
when determining in a custody matter what is in the best interest of the child
(citing Kinsella v. Kinsella, 150 N.J. 276, 318 (1997))). There is ample,
credible evidence in the record to support the trial court's decision to reject the
father's request for custody at this time.
A-3918-15T2 9 We do not condone the mother's actions to alienate the child from his
father. What she did is reprehensible. But Eric's best interests must govern.
"[T]he primary and overarching consideration [in an action for custody] is the
best interest of the child." Kinsella, 150 N.J. at 317 (1997) (citing Fantony v.
Fantony, 21 N.J. 525, 536 (1956)). Eric is an emotionally fragile child and
there is compelling evidence being separated from his mother and siblings will
cause him to suffer serious harm. Under the unique circumstances of this case,
we agree placing Eric in his father's custody is not a remedy that furthers this
child's best interests.
We considered the points the father asserts on appeal and, with the
exception of one, determined they do not merit discussion in a written opinion.
R. 2:11-3(e)(1)(E). However, we do part company with the trial court's
decision to withhold child support payments from the mother. We understand
the court was endeavoring to induce the mother to encourage contact between
Eric and the father by withholding child support from her, but child support
belongs to the child and is for his benefit.
"The purpose of child support is to benefit children, not to protect or
support either parent. Our courts have repeatedly recognized that the right to
child support belongs to the child, not the custodial parent." J.S. v. L.S., 389
A-3918-15T2 10 N.J. Super. 200, 205 (App. Div. 2006). Moreover, here, Eric cannot be blamed
for his mother's deplorable, inexcusable conduct. Although the child support
has been deposited into an account for Eric's benefit in the future, the
difficulty with such remedy is Eric is entitled to support now, not to mention,
depending on the circumstances, the father may not be responsible for
contributing toward the cost of attending college. See generally Newburgh v.
Arrigo, 88 N.J. 529, 545 (1982) (setting forth the factors to be considered
when evaluating a claim for contribution toward college). Therefore, the child
support to which he is now entitled should not be used to create a fund for
college.
The trial court is not without remedies to force the mother to encourage
Eric to reconnect with and enjoy a relationship with his father, see R. 1:10-3
and R. 5:3-7(a), but withholding child support is not one of them. Rule 5:3-
7(a)(2) provides economic sanctions may be imposed upon a party who has
violated a custody or parenting time order. Rule 5:3-7(a) does not state a child
may be sanctioned. By withholding child support, in effect the child is being
punished. There are other remedies available to incentivize the mother to
facilitate a relationship between Eric and his father.
A-3918-15T2 11 Accordingly, we reverse and vacate those provisions of the March 8,
2016 order pertaining to child support. We remand this matter to the trial
court so that it can enter an order stating the father shall resume paying child
support directly to the mother. More important, the court shall determine and
implement forthwith those remedies permitted by law that will enable Eric to
repair and restore his relationship with his father. Of course, those remedies
antithetical to Eric's best interests may not be used.
We leave to the court's discretion to determine whether it requires an
update from Eric's current therapist3 or other information, including but not
limited to an interview of Eric, to decide how best to accomplish the goal of
reuniting Eric with his father. The court must also conduct case management
conferences every thirty days to evaluate the progress Eric is making to
reestablish his relationship with his father.
Affirmed in part, reversed in part, and remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction.
3 We were informed during oral argument that Shea has died. A-3918-15T2 12