I.O. VS. M.C. (FD-20-1488-05, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: November 21, 2018
• Docket: A-1022-17T4
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1022-17T4

I.O.,

Plaintiff-Appellant,

v.

M.C.,

Defendant-Respondent. ____________________________

Submitted September 13, 2018 – Decided November 21, 2018

Before Judges Accurso and Vernoia.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FD-20-1488-05.

Ziegler, Zemsky & Resnick, attorneys for appellant (Steven M. Resnick, of counsel and on the briefs).

M.C., respondent pro se.

PER CURIAM Plaintiff I.O., the father of a fourteen-year-old son, M.O. (Mark),1 he

shares with defendant M.C., appeals from Family Part orders granting

defendant's motion to modify a March 17, 2016 parenting time order and

directing that the parties develop a schedule for unsupervised parenting time by

defendant.2 Because we conclude the court did not abuse its discretion by

determining there were changed circumstances supporting defendant's request

for a modification of the March 17, 2016 order, and the evidence supports the

court's determination it is in Mark's best interests to have unsupervised parenting

time with defendant, we affirm.

I.

Plaintiff and defendant dated prior to Mark's birth in 2003. Following

Mark's birth, the parties engaged in ongoing and contentious litigation over

1 We employ initials and pseudonyms for clarity and to protect the privacy of the parties. 2 Plaintiff appeals from the following orders: a September 15, 2017 order granting defendant's motion to modify a March 17, 2016 order, which required that her parenting time be supervised, and directing that the parties develop a parenting time schedule that includes unsupervised parenting time; an October 12, 2017 order directing unsupervised parenting time for defendant; an October 13, 2017 order modifying the arrangements for defendant's unsupervised parenting time; an October 16, 2017 order denying plaintiff's motion for a stay of the October 13, 2017 order; and an October 27, 2017 order denying plaintiff's motion for an order requiring that defendant's parenting time be supervised.

A-1022-17T4 2 custody and parenting time issues. In I.O. v. M.C., No. A-5349-12 (App. Div.

Sept. 2, 2014) (slip op. at 2-11, 21), we summarized their litigation history and

affirmed a June 28, 2013 Family Part order transferring legal and residential

custody of Mark from defendant to plaintiff and temporarily restricting

defendant to one hour of supervised parenting time per week. We relied in part

on the trial court's findings that defendant "was unwilling, and perhaps

psychologically incapable, of engaging in co-parenting in any meaningful

fashion," id. at 17, and that her ongoing refusal to comply with court orders

"demonstrated a refusal to co-parent and agree on matters related to Mark," id.

at 11.

We also noted the June 28, 2013 Family Part order required that defendant

undergo a psychological evaluation for the purpose of "establish[ing] 'a

comprehensive parenting time plan.'" Id. at 20. We determined that provision

of the order was interlocutory and therefore not before us, but noted the trial

court "was clearly hoping to expand [defendant's] parenting time in the future"

and "[d]oing so should be done on a priority basis, assuming of course,

appropriate cooperation from" defendant. Ibid.

Defendant subsequently underwent a psychiatric evaluation. In his report,

the psychiatrist opined that defendant could safely parent Mark without

A-1022-17T4 3 supervision and recommended reinstatement of unsupervised parenting time ,

subject to two caveats: defendant must demonstrate an ability to communicate

with plaintiff verbally and electronically in a civil manner, and she must not

undermine plaintiff's relationship with Mark.

In March 2015, the court considered the psychiatrist's report, the parenting

time supervisor's testimony supporting unsupervised parenting time for

defendant, and statements made by then eleven-year-old Mark during an in

camera interview of the child. The court entered a March 17, 2015 order

granting defendant unsupervised parenting time conditioned on the requiremen ts

that she communicate with plaintiff concerning all issues related to Mark and

not discuss the case with Mark, undermine plaintiff's parental authority or

remove Mark from New Jersey without plaintiff's express written authorization.

The order provided that if defendant violated any of its terms , supervised

parenting time would be immediately reinstated.

In May 2015, the court entered an order expanding defendant's parenting

time to include overnight visits. The court's order continued the conditions

imposed in the March 17, 2015 order, including the prohibition against

defendant removing Mark from the state without plaintiff's written consent.

A-1022-17T4 4 As the result of letters sent to the court by the parties concerning parenting

time issues, the court conducted a hearing on December 10, 2015. The court

determined defendant took Mark on a weekend trip to Virginia without

plaintiff's consent in violation of the March 17, 2015 and May 2015 orders, and

her violation of the orders was not in Mark's best interests. The court found

defendant's violation of the orders and refusal to communicate directly with

plaintiff concerning Mark constituted a substantial change in circumstances

warranting modification of defendant's parenting time. The court entered a

December 10, 2015 order eliminating defendant's overnight parenting time, but

permitting continued unsupervised parenting time subject to specified

conditions, including a prohibition against removing Mark from the state

without plaintiff's written consent.

On March 17, 2016, the court conducted a hearing on defendant's motion

for an order compelling Mark's use of both her and plaintiff's surnames,

prohibiting plaintiff from recording Mark and plaintiff's telephone

conversations, modifying the parenting time schedule and providing make-up

parenting time. The court denied defendant's motion.

The court also heard argument on plaintiff's cross-motion for

reinstatement of supervised parenting time. The court found defendant violated

A-1022-17T4 5 the prior orders by failing to communicate directly with plaintiff regarding

Mark, continuously calling the Division of Child Protection and Permanency

instead of communicating with plaintiff, and by involving Mark in matters that

should be addressed by defendant and plaintiff. The court found defendant's

actions caused Mark harm and that she could not be trusted to have unsupervised

parenting time.

The court entered a March 17, 2016 order directing that defendant's

parenting time be supervised and limited to four hours per week. The court

ordered that if the parties were unable to agree on a supervisor, Resolve

Community Counseling Center (Resolve) would supervise defendant's parenting

time. The parties did not agree on a supervisor, and defendant's parenting time

was thereafter supervised at Resolve. The court denied defendant's motion for

reconsideration.

On March 23, 2017, defendant filed a pro se motion seeking "clarification

on an end date for supervised visitation" and claiming that the orders limiting

her parenting time and requiring that it be supervised were punitive. Defendant

requested an order reinstating her "parenting time, unsupervised or with a family

member to supervise." Defendant also asserted that Mark "is [thirteen] years

old and can determine when he wants to visit with his mother and family" and

A-1022-17T4 6 that Mark "states [plaintiff] does not allow him to call [defendant] and

discourages him from contacting" her.

During the July 13, 2017 oral argument on the motion, the court asked

about Mark's preferences concerning his mother's supervised parenting time,

and plaintiff agreed the court could interview Mark. During the court's

subsequent in camera interview of the child, Mark stated he is thirteen years old,

entering the eighth grade and wants to spend more time with his mother,

including on alternate weekends and during vacations. He also indicated that

the presence of the supervisor during defendant's parenting time is annoying,

uncomfortable and unnecessary. He feels comfortable and safe with his mother

and wants unsupervised parenting time with her.

Over two days in August 2017, the court held a plenary hearing on

defendant's application for a modification of the May 17, 2016 parenting time

order. The court found there were changed circumstances requiring a plenary

hearing as to whether it was in Mark's best interests to modify the parenting time

order. More particularly, the court determined the changed circumstances

included the fact that Mark was one-and-a-half years older than when the March

17, 2016 parenting time order was entered, and Mark "made it very clear" during

A-1022-17T4 7 the court's interview that he preferred unsupervised parenting time with

defendant.

During the plenary hearing, defendant testified and presented the

testimony of a marriage and family therapist from Resolve who supervised some

of defendant's parenting time. Plaintiff also testified at the hearing.

Following the hearing, the court issued a detailed written opinion finding

plaintiff and defendant had a limited ability to communicate and cooperate in

matters related to Mark and that both parties contributed to the problem. The

court noted the prior history of the litigation between the parties, but determined

that plaintiff and defendant are fit parents who care deeply for Mark, who is

thriving socially and in school. The court further found that Mark is entering

the eighth grade and is of an age where "his preference in terms of moving

forward with parenting time should be a significant factor in the [c]ourt 's

determination." The court found Mark felt safe with plaintiff and defendant,

uncomfortable with continued supervised visitation and desirous of spending

unsupervised overnight parenting time. The court determined Mark was no

longer the same child who had been interviewed by the judges who issued prior

parenting time orders and was now "emotionally and logically mature."

A-1022-17T4 8 The court further determined that, "with appropriate procedures put into

place, [there] is no longer a risk . . . that [Mark's] or either parent's safety is now,

or ever has been, in jeopardy." The court found defendant raised Mark for the

first eight-and-a-half years of his life and that, during the following five years,

her time with the child was limited because she could not communicate with

plaintiff and follow court orders. The court determined that "[n]one of her

behaviors have ever demonstrated that she is unfit or would ever abuse or

neglect" Mark.

The court concluded it was in Mark's best interests for defendant's

supervised parenting time to be gradually changed from temporary supervised

parenting time by a designated supervisor, and then family and friends, to

unsupervised parenting time and unsupervised overnight parenting time. The

court entered a September 15, 2017 order directing that the parties agree to

develop a communication protocol and progressive parenting time schedule.

The court also directed that the parties should present any dispute to the court

concerning the parenting time schedule and communication plan.

On October 12, 2017, the court issued an order which in pertinent part

granted defendant unsupervised overnight parenting time on alternate weekends.

The order limited defendant's travel with Mark to New Jersey, New York,

A-1022-17T4 9 Connecticut and Pennsylvania, permitted Mark's communication with both

parents at any time, and prohibited plaintiff and defendant from making

disparaging remarks about the other or discussing any aspect of the litigation

with Mark. The court also entered an October 13, 2017 order specifying the

location where defendant is required to pick up Mark for her parenting time.

Plaintiff's motion for a stay of the October 13 order was denied on October

16, 2017. Plaintiff filed an emergent application requesting that the court

conduct an in camera interview with Mark, direct an updated psychological

evaluation of defendant and require supervision of her parenting time. The court

entered an October 27, 2017 order denying the emergent application. Plaintiff

appealed the court's September 15 and October 12, 13, 16 and 27, 2017 orders.

II.

On appeal, plaintiff argues the court erred by finding there were changed

circumstances permitting the court's consideration of defendant's motion to

modify the March 17, 2016 order, which allowed her only four hours of

supervised parenting time each week. Plaintiff further argues that even if

defendant demonstrated changed circumstances requiring a plenary hearing on

defendant's request for modification of the March 17, 2016 order, she failed to

A-1022-17T4 10 prove changed circumstances supporting the court's order granting her

unsupervised overnight parenting time.

"Because of the family courts' special jurisdiction and expertise in family

matters, appellate courts should accord deference to family court factfinding,"

Cesare v. Cesare, 154 N.J. 394, 413 (1998), "provided [it is] supported by

adequate, substantial, and credible evidence in the record," D.A. v. R.C., 438

N.J. Super. 431, 451 (App. Div. 2014). A court's legal determinations are not

entitled to any special deference. In re Forfeiture of Personal Weapons of F.M.,

225 N.J. 487, 506 (2016). We review questions of law de novo. Ibid.

In custody determinations, "the primary and overarching consideration is

the best interest of the child." Kinsella v. Kinsella, 150 N.J. 276, 317 (1997).

This inquiry focuses on the "'safety, happiness, physical, mental and moral

welfare' of the children." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div.

2007) (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)).

A party seeking a modification of a parenting time order "must meet the

burden of showing changed circumstances and that the [prior order] is now not

in the best interests of a child." Abouzahr v. Matera-Abouzahr, 361 N.J. Super.

135, 152 (App. Div. 2003); see also Lepis v. Lepis, 83 N.J. 139, 157 (1980).

"[T]he burden is on the party seeking modification to show that, 'due to a

A-1022-17T4 11 substantial change in circumstances from the time that the current . . .

arrangement was established, the best interests of the child would be better

served by'" the requested modification. Chen v. Heller, 334 N.J. Super. 361,

380 (App. Div. 2000) (quoting Voit v. Voit, 317 N.J. Super. 103, 121 (Ch. Div.

1998)).

Family Part judges "are regularly called upon to make exceedingly

difficult and delicate decisions as to the best interest of children, and we are

obliged to give deference to both their findings and the exercise of their sound

discretion." Abouzahr, 361 N.J. Super. at 157. A trial court misuses its

discretion by making a decision without a rational basis, inexplicably departing

from established policies, or resting its decision on an impermissible basis. US

Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 467 (2012).

Plaintiff argues the court abused its discretion by finding defendant mad e

a prima facie showing of changed circumstances warranting a hearing as to

whether the requested modification of the March 17, 2016 parenting time order

was in Mark's best interests. He contends defendant relied solely on the passage

of time since the entry of the order and failed to demonstrate any change in the

circumstances—her consistent failure to abide by prior parenting orders—which

A-1022-17T4 12 provided the basis for the prior order's supervised parenting time requirement.

We disagree.

Based on our review of the record, we are convinced the court did not

abuse its discretion by finding defendant demonstrated sufficient changed

circumstances warranting consideration of defendant's motion to modify the

March 17, 2016 parenting time order. When the order was entered, the court did

not consider Mark's preferences concerning defendant's parenting time. Sixteen

months later, at the July 13, 2017 oral argument on defendant's modification

motion, however, plaintiff consented to a court interview of Mark to determine

his parenting time preferences.

Based on the interview, the court determined Mark "is a mature and

intelligent [teenager] who is able to articulate his preference . . . in a positive

and logical fashion" and is of an "age [where] his preference in terms of moving

forward with parenting time should be a significant factor in the [c]ourt 's

determination" of defendant's request for a modification of parenting time. See

N.J.S.A. 9:2-4(c) (requiring that, in making a custody determination, the court

shall consider "the preference of the child when of sufficient age and capacity

to reason so as to form an intelligent decision"); see also Palermo v. Palermo,

164 N.J. Super. 492, 499 (App. Div. 1978) (stating that "the 'opinions' or

A-1022-17T4 13 expressed preference of the child to live with [one parent over the other are] not

controlling[, b]ut it is one of the factors which may properly influence the trial

judge's decision"). The court further found that Mark feels safe with defendant

and perceives the supervised parenting time imposed pursuant to the March 17,

2016 order as uncomfortable and unnecessary. Mark's clearly stated preference

is for unsupervised parenting time with defendant at her home in the

neighborhood where he resided for the first eight-and-a-half years of his life.

The court's determination that there were changed circumstances is

supported by its finding that the Mark it interviewed "is not the child that he was

when interviewed" by the judges who heard prior motions in the case. In other

words, the court determined that the change in Mark's level of maturity, his

perception that the supervised visitation was unnecessary, and his clearly and

logically articulated preference for unsupervised parenting time with his mother

constituted changed circumstances directly related to Mark's best interests. We

are convinced the record supports the court's determination and are satisfied the

court did not abuse its discretion by finding the changed circumstances

warranted consideration of defendant's modification motion.

Plaintiff also argues the court erred in finding, after the plenary hearing,

that it was in Mark's best interests for the court to order a gradual transition to

A-1022-17T4 14 unsupervised parenting time for defendant. We find the argument lacks

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We add only that we have reviewed the record, and the court's detailed findings

of fact are supported by substantial credible evidence. Moreover, its

determination that Mark's best interests are served by enjoying unsupervised

parenting time with defendant rests on a rational basis and, therefore, does not

constitute an abuse of discretion. See US Bank Nat. Ass'n, 209 N.J. at 467; see

also P.T. v. M.S., 325 N.J. Super. 193, 215 (App. Div. 1999) (quoting

Giangeruso v. Giangeruso, 310 N.J. Super. 476, 479 (Ch. Div. 1997)) (finding

that in issues of custody and visitation, "[t]he question is always what is in the

best interests of the children").

Affirmed.

A-1022-17T4 15