D.A. v. R.C. ( 2014 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4030-12T2
D.A.1,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
December 22, 2014
v. APPELLATE DIVISION
R.C.,
Defendant-Appellant.
____________________________________
Submitted March 19, 2014 – Decided December 22, 2014
Before Judges Fuentes, Fasciale, and Haas.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson
County, Docket No. FD-09-1520-02.
The Abraham Law Firm, LLC, attorneys for
appellant (Markis M. Abraham, on the brief).
D'Alessandro & Cieckiewicz, P.C., attorneys
for respondent (Lori Cieckiewicz and Jaclyn
Nayar, on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
Defendant R.C. appeals from the order of the Chancery
Division, Family Part denying his motion seeking reconsideration
of a prior order of the court which reaffirmed and enforced a
1
The court elects to use initials for the parties to protect the
identities of the minor children.
parenting time schedule that was part of a Consent Order entered
by the parties ten years earlier. Defendant argues the motion
judge erred in failing to compel the parties to submit to
mediation or alternatively conduct a plenary hearing to address
and resolve the disputed material factual issues raised by the
parties. Most importantly, defendant argues the judge failed to
interview the fourteen-year-old child at the center of this
dispute, as mandated by Rule 5:8-6, and failed to "specifically
place on the record the factors which justify any custody
arrangement not agreed to by both parents." N.J.S.A. 9:2-4(f).
After reviewing the record developed before the Family
Part, we agree with defendant's arguments and remand this matter
for the trial judge to refer this matter to mediation as
required under Rule 5:8-1. If mediation fails to resolve the
custody and parenting time issues raised by the parties, the
judge shall then conduct a plenary hearing to resolve the
factual disputes contained in the parties' account of events,
and thereafter place on the record his factual findings and
conclusions of law as required by N.J.S.A. 9:2-4(f) and Rule
1:7-4(a). As part of this hearing, the judge must comply with
the requirements of Rule 5:8-6 by either interviewing the
parties' now sixteen-year-old son concerning the custody and
parenting time issues raised by his parents, or otherwise place
2 A-4030-12T2
on the record the reasons for his decision not to interview this
child. In reaching this decision, the judge must consider the
factors outlined in N.J.S.A. 9:2-4(c), including "the preference
of the child," given his age and capacity to reason.
We discern the following facts from the record developed
before the Family Part.
I
The parties had a dating relationship from 1996 to 2000.
Their son "Jeremy" (a fictitious name to protect his privacy)
was born in December 1998. Represented by separate counsel, the
parties agreed to mediate the legal issues concerning their son
and entered into a Consent Order for Joint Custody and Parenting
Time dated April 26, 2002. This Consent Order comprehensively
addressed and resolved all of the issues generally associated
with the rearing of the parties' then three-year-old son,
including agreeing that the child would reside with plaintiff
(mother), while giving defendant (father) "reasonable and
liberal parenting time with the child." The Consent Order
included a detailed description of the terms governing
defendant's parenting time with his son.
Neither party sought judicial intervention to modify the
terms of this Consent Order until defendant filed a motion on
November 7, 2012, "requesting changes in the custody/parenting
3 A-4030-12T2
time terms of the [consent] order to reflect the current
practice and agreement." Defendant claimed plaintiff had
voluntarily agreed to this modification permitting Jeremy to
reside with him because her relationship with her then thirteen-
year-old son had deteriorated and become too difficult to
handle, given the demands of time and effort associated with her
then recent employment as a police officer.
Defendant attached to the notice of motion an "information
sheet" dated October 28, 2012, setting forth the basis for his
request that the court recognize and approve what he claimed was
a de facto, mutually agreed upon voluntary modification of the
custodial arrangement established in the 2002 Consent Order.
The following account of events is based upon the allegations
defendant made in support of this motion. Specifically,
defendant claimed that since the Consent Order "was issued
almost ten years ago, the [p]laintiff and I have on many
occasions informally modified the custody and parenting time
terms of the Court Order to better align with [Jeremy]'s needs
and best interest." Although he recognized that his son had
been academically successful during the time he had resided with
his mother, defendant claimed the child had also experienced
"intermittent disciplinary and behavioral issues . . . ."
4 A-4030-12T2
These issues became more acute as the boy reached his
teenage years. Defendant attributes his son's behavioral
problems, at least in part, to plaintiff's "parenting style,"
which defendant characterizes as "ill-suited and ineffective in
addressing" Jeremy's disciplinary problems. Defendant alleges
he "regularly got phone calls" from both plaintiff and Jeremy
"expressing frustration and anger, or complaints about the
other."
The relationship between Jeremy and his mother continued to
deteriorate during the boy's pre-teen years. Eventually
plaintiff told defendant that "she thought it would be better if
[Jeremy] lived with [him] permanently." Defendant claimed that
during the summer of 2012, when Jeremy was thirteen years old,
he and plaintiff "reached [an] agreement that [he] would take
primary custody of [Jeremy], to begin 'officially' when school
started in September [2012]." They agreed upon a parenting time
schedule that permitted Jeremy to meet with his mother on
Wednesdays "after school" and stay with her overnight on
"alternate weekends." Defendant represented to the court that
this arrangement "has been in effect at least since September
[2012]."
With respect to child support, defendant claimed plaintiff
agreed to file a motion to modify the Consent Order "to reflect
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this understanding in December 2012 when she graduated from
police academy training. In the meantime, [p]laintiff agreed
that she would reimburse me in the amount of the child support
payments I made pending the modification." According to
defendant, he decided to file the motion seeking judicial
recognition of this oral agreement because plaintiff told him
"she did not have time [to do it herself] because she was too
busy due to her police academy obligations."2
Plaintiff submitted her own certification disputing all of
the material allegations defendant made in support of his
motion. As a starting point, plaintiff emphasized defendant
"has a law degree from Harvard and a MBA [Master's Degree in
Business Administration] from the University of Pennsylvania."
She described defendant's conduct during their initial attempts
in 2002 at resolving the custody and parenting time issues as
confrontational and less than completely candid and forthright
on defendant's part. She was nevertheless thankful that they
were able to reach an agreement that lasted for eleven years
"except for very brief periods of time."
2
Defendant's reply certification included an alleged verbatim
account of a series of electronic text messages exchanged by the
parties from October 18, 2012 to October 23, 2012, in which
plaintiff acknowledges her intent to "drop" defendant's child
support obligation in recognition of Jeremy's new custodial
status. Unfortunately, these text messages were not
authenticated by the trial court.
6 A-4030-12T2
Plaintiff cited the summer of 2012 when she began her
academy training to become a police officer as an example of one
of the "brief" departures from the custodial arrangement
reflected in the 2002 Consent Order. Because the time demands
imposed on her by this training coincided with defendant being
unemployed, plaintiff "thought it would be a fine opportunity
for 'father and son' to spend more time together." She
insisted, however, that this was a temporary custodial
arrangement intended to end when she graduated from the police
academy on December 14, 2012. Because the exigency that
necessitated this custodial arrangement had ended, plaintiff
claimed it was in her son's best interest to return to her home.
With respect to her son's welfare, plaintiff alleges Jeremy
"is exposed to violence at [defendant's] home and that his needs
are being neglected." Her concern over her son's safety
emanates from defendant's wife. Plaintiff characterizes
defendant's relationship with his wife as "quite violent." She
claims three domestic violence restraining orders have been
filed between defendant and his wife, "believes" each has filed
municipal court charges against the other, and claims "the
police have been called to the home on multiple occasions." She
thus fears that Jeremy is "often put in the middle" of
7 A-4030-12T2
defendant's violent and dysfunctional relationship with his
wife.
By way of proof, plaintiff presented to the trial court
(and included in the appellate record) three emails allegedly
sent by Jeremy on the morning of April 11, 2012. The first
email, sent at 9:22 a.m., states: "MOM CALL THE POLICE SEND THEM
TO MY DADS [sic] HOUSE [naming defendant's wife] HAS A KNIFE
PLEASE CALL PLEASE CALL THE POLICE AND SENT THEM TO [defendant's
home address]! PLEASE PELASE [sic] PLEASe [sic]." The second
email, sent at 9:23 a.m., states: "CALL THE POLICE AND SENT IT
TO MY DADS [sic] HOUSE PLEASE PLEASDE [sic] PLEASE." The third
and final email, sent at 9:24 a.m., states: "SEND THEM TO MY
DADS [sic] HOUSE SEND THEM TO MY DADS [sic] HOUSE."
Plaintiff claims she was shopping one block away from
defendant's residence when she received the first email, and
"rushed over." When she arrived at defendant's apartment, she
"had to knock on the door really hard and had to yell out for
him." When she finally gained access to the apartment, her son
told her
that he locked himself in his room when he
saw the knife. As we were leaving, I saw
[defendant] outside the building with his
daughter [identifies her by name]. I asked
him what happened. He simply said that
"[his wife] was having a hormonal moment and
left the house."
8 A-4030-12T2
Plaintiff characterizes defendant's response to the
violence between him and his wife as "unacceptable." As a
result, she "did not allow [Jeremy to go his father's home] for
the next 3 weeks." Plaintiff also claims that at some
unspecified time defendant and his wife were involved "in a
court battle for their [six-year] old daughter." It is
plaintiff's "understanding" that defendant's wife "lost the case
because of her violent tendencies and her drug use." Plaintiff
alleges defendant and his wife "have since reconciled and live
together." Plaintiff concluded this aspect of her certification
by describing defendant's home as "an unstable, violent place
for our son. A custody transfer to [defendant] would not be in
[Jeremy's] best interest whatsoever."
Despite making these highly inflammatory allegations
against defendant and his wife, plaintiff conceded that she
"modified" the custodial arrangement at the start of Jeremy's
freshman year of high school for "approximately two months."
She claims, however, that the custodial arrangement defendant
described in his statement ended when defendant's wife "started
having problems with our son." Specifically, plaintiff claims
defendant's wife called her to complain about having to drive
Jeremy around because he "wasn't her child or her
responsibility." Instead of immediately terminating the
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arrangement, plaintiff claims she told defendant's wife "to
discuss the matter with [defendant]. After all, [Jeremy] was
his responsibility as well."
Plaintiff describes her personal life as nonviolent and
happy. She has a stable relationship with "another police
officer." She claims her "'significant other' loves [Jeremy]
and [Jeremy] loves him." She does not have a criminal record
and "look[s] forward to a long career with [the] [p]olice
[d]epartment." Finally, because she does not have any other
children, she can focus her attention on Jeremy.
Defendant filed a reply certification noting that he had
not made any inflammatory allegations against plaintiff in
support of his motion, and then lamenting the ad hominem attacks
plaintiff had made against him and his wife. Defendant
addressed and refuted the many instances of impropriety alleged
by plaintiff. He also emphasized that plaintiff had not
objected to his regular overnight contacts with his son since
2010.
Despite defendant's alleged intent to remain above the fray
and take the moral high ground in this dispute, his reply
certification is replete with disparaging allegations of
plaintiff's confrontational parenting style, including resorting
to striking Jeremy "repeatedly with a broomstick" and
10 A-4030-12T2
threatening him "with a baseball bat." We pause here to note
the same seeming contradictions in defendant's position we noted
when we reviewed plaintiff's certification. That is, despite
these highly disturbing accusations and concerns about
plaintiff's parenting style, defendant allowed his young son to
reside with his allegedly violent mother for over ten years.
II
The First Hearing
Both sides were represented by counsel at the time
defendant's motion to modify the 2002 Consent Order came before
the Family Part on December 21, 2012. Unfortunately, the
attorneys' demeanor and arguments echoed the vitriolic tone
reflected in the warring certifications submitted by their
respective clients. We are compelled to note at this time the
informality with which the trial judge conducted this motion
hearing. Although the parties were technically "sworn" by a
Sheriff's Officer at the start, the environment created by the
informal, conversational style of the proceeding was more akin
to a mediation session than an adjudicative hearing. This had
the unintended, yet unfortunate effect of yielding more heat
than light, ultimately leaving unresolved the central issues
raised by the parties.
11 A-4030-12T2
The judge interacted with the parties on the record in a
highly informal manner, asking questions and receiving material
and conflicting factual assertions in response from both the
parties and their respective counsel. Despite these conflicting
material accounts involving key events, the judge seemed at
times to accept or reject these proffers and representations
without having the benefit of a factual record developed through
a traditional evidentiary hearing.
Through this freewheeling colloquy, plaintiff conceded that
Jeremy had been residing with defendant since she entered the
police academy at the start of the summer of 2012. In fact,
when the judge asked plaintiff whether "as a practical matter,"
Jeremy resided with his father "right now," plaintiff answered:
"Right now he's staying there, yes."
However, defendant asserted (without being subjected to
cross-examination) that by mutual agreement with plaintiff,
Jeremy had been residing with him since he graduated eighth
grade in 2010. The judge addressed defendant directly to ensure
he understood his position:
THE COURT: Okay. So your position is since
2010 [Jeremy] has been -- when you say
staying with you what do you mean by that?
. . . .
DEFENDANT: Yes, Your Honor. I mean Monday
through Friday with an understanding that he
12 A-4030-12T2
would -- she -- he would be over with her on
the weekends. And -- and actually quite
frequently during those weekends because of
the confrontations that they would have he
would actually call me to have him -- pick
him up . . . . So actually he would end up
spending more than that.
Defendant's counsel asked the judge "to put the same
question to [plaintiff.]" In response, the judge asked
plaintiff: "What do you have to say?" After some equivocation,
plaintiff denied defendant's account and offered to produce her
parents and other friends as witnesses to support her position.
In the midst of this freewheeling exchange, the judge made the
following comment:
THE COURT: We can -- and we can have
[Jeremy] come in here too, but I really
don't want to do that.
DEFENDANT'S COUNSEL: Right.
THE COURT: All right. Let me make that
clear. But don't -- let's -- let's hope it
doesn't come to that now, all right.3
Despite the parties' intransigence and conflicting
positions, the motion judge continued to press for some form of
mediated solution. Showing his frustration, the judge addressed
the parties directly and asked: "Why do I have to make a
decision for the two of you about where your son should stay?"
3
The judge specifically noted, however, that Jeremy was an
"obviously . . . very smart" fourteen-year-old boy.
13 A-4030-12T2
The record shows that fourteen transcript pages of argument and
colloquy transpired thereafter. The judge never received a
direct answer to his poignant, yet seemingly rhetorical
question. At that point, the judge addressed the parties once
again with these final words:
All right. I'm going to say something --
now, I'm going to say something.
[Addressing plaintiff] Let's stop talking
about [defendant's wife] too, all right, if
you don't mind. I know you don't mind.
I -- I think, look, I'm -- I'm trying to
resolve it, I want to resolve it. It
doesn't make sense for the both of you to
keep coming back here.
The both of you are working. The both of
you are intelligent people. Now, come on.
Now, the court order that was in effect
which has not been amended since 2002,
correct?
. . . .
All right. Then that's what I am inclined
to continue in effect. Now, the question
becomes what are we going to do to effect
liberal parenting time. And when I say
liberal I don't mean necessarily every other
weekend, and I don't know if there's some
other way we can effectuate long weekends or
what. I don't know, and I'm not going to go
through here trying to work out a parenting
schedule, all right.
Now, you can either go to mediation, you can
go today if we can arrange it, or the two of
you, or all four of you can go into my
conference room, sit down, and come up with
a parenting schedule where [defendant] gets
liberal parenting time.
14 A-4030-12T2
. . . .
We can do that . . . We can send the parties
to mediation and see what develops. I'd
like to think, as I said, and I'm not saying
this -- and I don't say this to everyone who
appears in front of me, you're two very
intelligent people. Take a step back for a
moment and try to work this out. Yes or no?
Are going to try to do something since we
have the parties here?
As an accommodation to the attorneys' schedule, and in
light of the pending holiday recess, the court scheduled the
matter to return for mediation on Thursday, January 10, 2013.
III
The Second Hearing
When the parties returned on January 10, 2013, nothing
substantive had changed. The parties remained barricaded behind
their intransigent, materially-conflicting positions.
Plaintiff's counsel apprised the judge that "because there has
been no specific parenting plan [defendant] has taken it upon
himself to keep the child and take the child sometimes more
often than not thereby basically ignoring Your Honor's court
order and thereby depriving my client of residential custody."
Defense counsel responded by asserting that the parties were
at an impasse in terms of residential
custody. There's this kind of amorphous
liberal parenting time plan where the 14-
year old who wants to stay at his father's
house, has demanded to stay at his father's
15 A-4030-12T2
house, has been staying at his father's
house during the week and there has been
ongoing conflict between the child and his
mother. There's no violation of the court's
order.
What we have is a 14-year old who is as big
as [his father] who goes to school, who's
successful in school, who wants to stay with
his father. We have two parents. We have a
mother who is demanding that the child stay
at the house during the week when she's at
work at -- at last report until eight
o'clock at night and [defendant] has taken
on the responsibility of being the custodial
parent.
The proceedings continued to be conducted from this point
on in the same informal manner that characterized the December
21, 2012 hearing. The attorneys continued to make conflicting
factual representations to the judge without any competent
evidence to support them. Plaintiff's counsel pressed the judge
to reaffirm his prior ruling and order, and reaffirm plaintiff's
role as the residential custodial parent. As the following
passage indicates, however, in making this argument plaintiff's
counsel implicitly conceded defense counsel's claim that the
child was, as a matter of fact, residing on a fulltime basis
with his father:
PLAINTIFF'S COUNSEL: Your Honor's order
needs to be enforced. This 14-year-old
child is being a 14-year-old child. He's
being rebellious. He doesn't like the
discipline that my client has at her home.
At [defendant]'s home he gets to sit in his
room all day playing his computer games.
16 A-4030-12T2
THE COURT: All right.
PLAINTIFF'S COUNSEL: And that's not what
happens at [plaintiff]'s home. So I ask
that Your Honor finalize this case, end this
case, not let a 14-year-old dictate the
terms of a court order, remind [defendant]
that there is an enforceable court order in
-- it's actually a criminal violation,
Judge, as Your Honor knows better than
anyone else, to deprive someone a court-
ordered custody or parenting time for more
than 24 hours. He's done that time and
again [apparently referring to defendant].
This vitriolic exchange of unsupported accusations by the
attorneys continued throughout this hearing, interrupted
intermittently only by the judge's acknowledgment of any
particular statement. At one point, defense counsel stated:
DEFENSE COUNSEL: I think that the [c]ourt
should, A, determine what the real problem
is here, because if this 14-year old wanted
to go stay at his mother's that's where he
would be. [Defendant] has said it to me.
If the child wants to get on the bus after
school and take the bus to his mother's
house he could do that.
. . . .
[T]hat's true that he's been with
[defendant] for two years. And determine -
- and determine what this child is saying,
because I have a client who's telling me,
this child, -- and I say child, he's 14,
wants to stay with me, is doing well with
me, has conflict with his mother. And you
have a mother saying the child should be
with me because there's an order from 2002
that says that he should be with me. I
17 A-4030-12T2
think the [c]ourt needs to determine exactly
what -- which of those things is true.
THE COURT: Yeah, well how do I do that?
DEFENSE COUNSEL: Well, A --
PLAINTIFF'S COUNSEL: And -- and the way my -
-
THE COURT: How do I --
. . . .
PLAINTIFF'S COUNSEL: Hold on.
THE COURT: No, wait a minute, wait a minute,
hold on. I'm directing the question to
[defense counsel].
DEFENSE COUNSEL: Okay.
THE COURT: How do I do that?
DEFENSE COUNSEL: A, take testimony from the
parties; B, interview the 14-year old,
because he is certainly mature enough to
express to the [c]ourt --
PLAINTIFF'S COUNSEL: I would object to that,
Judge.
DEFENSE COUNSEL: Of course they --
THE COURT: Well -- well, you see, now this
is where we -- this is where we go because I
test -- taking testimony from the parties is
not going to give me the insight that I need
because, as you said, they are diametrically
opposed. Their [perspective] of what's
going on, all right, is of course, tainted.
DEFENSE COUNSEL: . . . I think what the
[c]ourt needs is a third-party [perspective]
on exactly what's going on, because I think
the [c]ourt is right, when you're faced with
18 A-4030-12T2
two diametrically opposed views I think that
an interview with the child, or at the very
least appointing an evaluator, a
psychologist to look at the child, look at
the parents, and find out exactly what's
going on. Because otherwise there's not
going to be a resolution, because the
parties are not going to agree.
[(Emphasis added).]
Plaintiff's counsel continued to press for enforcement of
the judge's supposed "final decision" requiring residential
custody to remain with plaintiff and relisting the matter only
for a determination of the parenting time arrangement.
Plaintiff's counsel concurred with the judge's decision that
taking testimony from the parties in a formal evidentiary
hearing, subject to cross-examination "is not going to resolve
anything." With respect to the suggestion that the judge
interview Jeremy, plaintiff's counsel stated:
PLAINTIFF'S COUNSEL: I will go a step
further than that[,] to bring a 14-year old
in, a very smart, perceptive, intelligent,
understanding 14-year old into Your Honor's
chambers, into what is a very, no offense to
any of us, unpleasant atmosphere and choose.
Well, there's police officers here, there
are people being handcuffed here. The child
is going to know.
THE COURT: I'm a very pleasant fellow --
. . . .
-- especially when it comes to dealing with
children, I think.
19 A-4030-12T2
. . . .
PLAINTIFF'S COUNSEL: -- the other party is
on drugs or a -- a heavy drinker. Your
Honor listened to what needed to be said.
Your Honor listened to all the allegations
by both sides and made a decision, a final
decision. And now we need to -- the only
outstanding issue is [defendant]'s
parenting.
. . . .
THE COURT: [Y]ou know what we're going to
have to do maybe, maybe we're going to have
to have split custody. Maybe we're going to
have to have 50/50 split. In fact, the more
I hear about this situation the more I think
that that's probably what has to happen.
Split the custody 50/50, come up with the
days, and that's what -- that's what we're
going to have to do. It's a 14-year-old
boy.
Now, let me say this, I'm not sure what he's
telling his father, but I think . . . that
there is an issue about him wanting to stay
with his father. Now, whether that's
because he's given, as you say, maybe too
much freedom as opposed to when he's with
the mother, that could be, but you know, I
think right now that the only way that this
gets resolved with a 14-year-old boy is to
have a split custody situation and he will
have to be told in no uncertain terms that
that's what the [c]ourt order is. And he
will have to abide by the order. And both
parents, of course, have to abide by the
order.
[(Emphasis added).]
Several more transcript pages later, defendant addressed
the judge directly as follows:
20 A-4030-12T2
DEFENDANT: The [custody arrangement] that's
proposed now, given what's happened just
since the last time we were in this
courtroom in trying to -- to have [Jeremy]
abide by that agreement. It doesn't work.
I don't like being put in the position where
I'm made to somehow look like I'm in
contempt because --
THE COURT: No, I'm not saying you're in
contempt.
DEFENDANT: -- he absolutely refuses to go
with his mom or -- or to leave when she
comes to pick him up.
The judge then asked defendant if certain variations with
the days of the week in the custody order would be likely to
obtain Jeremy's compliance. This prompted defendant to respond:
"We can put in another order, but I'm almost certain that we'll
be right back here again because he will not abide by it."
Thereafter, plaintiff's counsel again pressed the court to
reaffirm what he claimed to have been the court's prior order,
giving plaintiff full residential custody of her son. With
respect to defendant's admonition, emphasizing the likelihood
that Jeremy would "not abide" the court's order, plaintiff's
counsel argued that "[t]his child has to be encouraged and
pushed to comply with the order." (Emphasis added).
This prompted the following response by the judge:
THE COURT: All right, here's the order of
the court. It's split custody 50/50. You
[work] out a plan how you do it, all right.
You work it out, you give it to me before
21 A-4030-12T2
the end of the day. That's the order of the
[c]ourt.
PLAINTIFF'S COUNSEL: Why doesn't Your Honor
-- we're gonna --
THE COURT: If you don't like it -- if you
don't -- if either party doesn't like it
appeal it. That's the order of the [c]ourt.
. . . .
[T]ell the young man he's got to abide by
the [c]ourt order.
On January 17, 2013, just one week after the court's order,
plaintiff filed an Order to Show Cause (OTSC) against defendant
before a different judge seeking Jeremy's return by "8:00 p.m.
on January 18, 2013." Plaintiff submitted a certification
claiming defendant had "completely disregarded" two court orders
and as a result, she had not seen her son in ten days. To
induce the court to issue this emergent relief, plaintiff
averred that defendant: (1) refused to bring Jeremy to her home;
(2) rebuked her efforts to retrieve Jeremy; (3) "almost never
answers" her phone calls; and (4) had told Jeremy not to come
home.
On January 15, 2013, plaintiff sent her sister to pick up
Jeremy at defendant's home, and "[w]hen she was unsuccessful,
[her sister] called the police." Plaintiff did not have any
personal knowledge of what transpired when police officers
arrived at defendant's home in response to her sister's call.
22 A-4030-12T2
Despite this legal impediment, plaintiff averred to the judge
who issued the OTSC that "[s]hortly after the officers arrived,
[defendant] told them that we were still 'waiting for a
decision' and the 'court process is still going on.' This was a
blatant, bold-faced lie!!!"
Plaintiff asked the OTSC judge to issue a warrant for
defendant's arrest if he failed to comply with the emergent
relief she was seeking. The judge who entered the OTSC awarded
plaintiff custody of Jeremy "until further order," and set the
matter down for a hearing on January 24, 2013, before the first
judge.
IV
The Third Hearing
The trial judge opened this hearing by expressing his
regrets that the OTSC had been entered on the week he was on
vacation. After this short preliminary remark, the judge
addressed the parties and counsel directly stating: "[Y]ou guys
can appeal me you can do whatever you want, but I'm going to say
something. This is coming to an end. One way or the other.
Today this is over. That's the preface."
Despite the judge's resoluteness and good faith efforts,
the informality and disregard for the rules governing judicial
proceedings continued unabated. By way of example, in response
23 A-4030-12T2
to the judge asking plaintiff's counsel "what's been going on
since [Jeremy] has been with your client over the past week?",
counsel responded: "[Jeremy told] my client . . . 'I have no
problem living by this 50/50 arrangement if you stop my father's
child support.'" This brazen attempt at impugning defendant's
credibility with incompetent hearsay evidence was left
unchallenged by defense counsel, and apparently accepted by the
judge without reservation. In fact, in response to plaintiff's
counsel's assertion, the judge noted: "I'm concerned about what
you raised about the child support statement."
This prompted some discussion about whether the provision
in the 2002 Consent Order addressing child support should be
amended to reflect the current joint-custody arrangement the
judge had ordered on January 10, 2013. The discussion returned
to the issue of custody, and plaintiff's counsel claimed that
things between Jeremy and his mother were going "smooth."
Plaintiff's counsel also made the following representation to
the court:
[Jeremy] is 14-years old. We have every
confidence that if [Jeremy] was encouraged
to comply by [defendant] that he would.
He's an impressionable young 14-year-old man
who has to -- really has to -- and I don't
want to sound -- engage in psychobabble
here, he has to compete for his father's
attention with two younger children who also
live in the home. And so it's not
24 A-4030-12T2
surprising that he's shown a bit of
[resistance].
But when he is -- when it's told to him and
it's emphasized that there are consequences
for non-compliance he stays out at the home.
He's been there since Sunday.
When asked by the judge to respond, defense counsel
immediately seized upon his adversary's characterization of
things going "smooth" between Jeremy and his mother to claim
that in fact the converse was the case. According to defense
counsel, "rough" was a more apt description of what had taken
place since the police arrived at his client's home. Defense
counsel noted the irony in this situation, because it was
plaintiff's counsel who argued against the judge interviewing
Jeremy in chambers to avoid exposing him to the traumatic
experience of seeing armed police officers in the courthouse.
At plaintiff's request, local police officers responded two
times to defendant's home in the seven-day period between the
January 10, 2013 hearing and the January 17, 2013 OTSC.
Defense counsel claimed to have seen text messages sent by
Jeremy to his father asking him repeatedly to come and pick him
up and take him away from plaintiff's home. According to
defense counsel, Jeremy decided on his own to walk to his
father's home, which is located approximately three miles from
plaintiff's residence. Again, following the consistent theme of
25 A-4030-12T2
this case, counsel's representation was unsupported by competent
evidence. This prompted the judge to speculate: "Maybe he got
ill because of all this constant bickering . . . between the
mother and the father."
After again drifting into discussions concerning child
support, plaintiff's attorneys responded to defense counsel's
comments concerning Jeremy:
PLAINTIFF'S COUNSEL: Your Honor knew that
there would be some [resistance] to the
child.
THE COURT: Right.
PLAINTIFF'S COUNSEL: There's less resistance
now then there had been, because when Your
Honor entered the first order, entered the
second order, the kid said I'm not going, I
don't care what any judge tells me. Now
he's complying. That's progress, okay.
He's at mom's house since -- for a week now,
okay. Your Honor made a wise, well-informed
decision. . . . I'm not trying to patronize
Your Honor.
. . . .
PLAINTIFF'S COUNSEL: . . . After Your Honor
entered the order from December 21st, 2012
giving my client residential custody and
continuing the order from 2002 [defendant]
took the child as he pleased, kept the child
as he pleased.
. . . .
THE COURT: You made your point, you made
your point why we're here. You made your
point . . . . So let's not argue what we
argued last time. Okay.
26 A-4030-12T2
DEFENSE COUNSEL: Your Honor, the real
problem here, and this is -- I guess it's a
dispute, I guess it's something that the
[c]ourt is going to have to get to the
bottom . . . of, we have a 14-year old
[boy.]
. . . .
We have a child that does not want to be at
his mother's. You sent the -- they -- they
sent the police to his house. He goes to
the mother's house, he leaves the mother's
house. Now, the police come back to his
house. And all the while all they're saying
to you is [defendant] is at fault.
There's a problem here. The problem isn’t
[defendant]. He didn't make his son leave
her house. He didn't make her son not want
to go there. If the 14-year old wanted to
go there he would have went there. Nobody's
-- he's not in a cage. He's a --
[(Emphasis added).]
At this point, the judge interrupted defense counsel to
advise both attorneys that he had received that day a "case
blurbs from the bar association" concerning an unpublished
opinion from this court. According to the judge, in this non-
precedential decision this court reversed the Family Part for
failing to interview a fifteen-year-old child in a matter
involving a change of custody application. The judge conceded
that he did not have the full opinion, but immediately thought
of this case after reading the synopsis. To his credit, the
judge candidly admitted that he had been reticent to interview
27 A-4030-12T2
Jeremy because he wanted to spare the child the emotional trauma
associated with his parents' feud.
The judge continued:
But it may have come to that point. Because
we cannot have the situation continue here
where there's police involvement, for
reasons that I already alluded to. And then
we have a request made that I should enter
an order that there be an immediate arrest
if there's non-compliance. That's not
happening. I'll tell you that right now.
There might be other sanctions first,
monetary or otherwise, but they'll be no
such order.
So now here's what I'm wondering. You're
right though why we're here. And I don't
want to expand the reason why we're here.
But it's clear to me that despite what I
think on my best efforts to try to have the
two of you come together it's not happening.
So here's what we're going to do, the
current order remains in full force and
effect. It has to be obeyed. If either one
of you want to file an application that
includes specifically that we interview the
child you may do so. Or if the two of you
agree to that you may do so, but you're
going to have [to] file a motion.
I'd like the two of you, if you could, to
take a look at the case. I'm going to try
to get the case. . . . It's unreported, but
it's [persuasive].
. . . .
PLAINTIFF'S COUNSEL: But someone has to
file the application, Your Honor.
THE COURT: Right. I'm not doing it -- no.
28 A-4030-12T2
PLAINTIFF'S COUNSEL: Okay.
. . . .
THE COURT: No, no. I'm not doing it on my
own motion. Maybe you can -- you -- I still
-- let me try one other -- one other
approach, and I know at one time we
discussed this, mediation. Is mediation out
of the question?
Defendant's counsel indicated his client was "open to
mediation"; plaintiff herself made clear she was not. Following
plaintiff's unequivocal rejection, defense counsel indicated his
client was equally unwilling to submit to this alternative
process. Despite the judge's best efforts to convince them to
change their minds, they remained committed to their position
not to mediate.
V
Defendant's Motion for Reconsideration
On January 31, 2013, defendant filed a motion requesting
the court to: (1) reconsider the January 10, 2013 order; (2)
grant defendant primary residential custody of Jeremy; (3) order
the parties to submit to mediation; (4) interview Jeremy; (5)
reinstate the parenting time that prevailed from September 2012
to the end of 2012; and (6) modify defendant's child support
obligation commensurate with his status as a parent with primary
residential custody.
29 A-4030-12T2
Defendant's motion came before the trial judge on March 18,
2013. The attorneys recounted the tortured procedural history
of the case, and continued to make unsupported factual
allegations. Conspicuously missing from this exchange is any
reference to legal authority supporting or undermining the
arguments advanced by either side. No statute, court rule, or
case law was cited. At the conclusion, the judge again
reaffirmed his previous order and declined to interview Jeremy.
VI
Legal Analysis
Against this record, defendant now appeals, arguing the
trial judge erred in failing to order the parties to submit to
mediation as required under Rule 5:8-1, and failing to consider
and apply the factors outlined in N.J.S.A. 9:3-4 before reaching
a final decision on who should be Jeremy's primary residential
custodial parent.
We start our legal analysis by reaffirming that "the best
interests of the child" is the fundamental legal principle that
will guide our review of this case. Kinsella v. Kinsella, 150
N.J. 276, 317-18 (1997). This overarching consideration - "best
interests of the child" - was defined by our Supreme Court
nearly fifty-nine years ago as a paramount judicial
responsibility to consider and safeguard "the safety, happiness,
30 A-4030-12T2
physical, mental and moral welfare of the child." Fantony v.
Fantony, 21 N.J. 525, 536 (1956). The Legislature has also
adopted the "best interests of the child" standard as a matter
of public policy. See N.J.S.A. 9:2-4.
Determining what custodial arrangement is in the best
interest of a child requires the Family Part judge to apply the
statutory factors outlined in N.J.S.A. 9:2-4, as complimented by
the relevant court rules governing an award or change of
custody, and reach a conclusion that is supported by the
material factual record. "Absent exigent circumstances, changes
in custody should not be ordered without a full plenary
hearing." Faucett v. Vasquez, 411 N.J. Super. 108, 119 (2009),
certif. denied, 203 N.J. 435 (2010) (citing R. 5:8-6).
Our Supreme Court has noted that, as a general proposition,
we should accord great deference to discretionary decisions made
by Family Part judges, provided they are supported by adequate,
substantial, and credible evidence in the record. Cesare v.
Cesare, 154 N.J. 394, 411-13 (1998). A proper exercise of
judicial discretionary authority "connotes conscientious
judgment, not arbitrary action; it takes into account the law
and the particular circumstances of the case before the court."
Higgins v. Polk, 14 N.J. 490, 493 (1954).
31 A-4030-12T2
Here, our extensive examination of the record developed
before the Family Part over three separate hearings did not
reveal any instance in which the trial judge applied,
considered, or even mentioned any of the relevant statutory and
regulatory standards to determine whether a change in
residential custody was in the best interest of this then
fourteen-year-old boy. The Family Part's unexplained departure
from the established policies governing change of custody
applications leaves us with no other alternative but to remand
this matter for the court to consider and apply the required
procedural guidelines.
A
Mediation
With respect to mediation, Rule 5:8-1 makes clear that
"[i]n family actions in which the court finds that either the
custody of children or parenting time issues, or both, are a
genuine and substantial issue, the court shall refer the case to
mediation in accordance with the provisions of [Rule] 1:40-5."
(Emphasis added). In order to provide a reasonable and
meaningful opportunity for mediation to succeed, the trial court
should confer with counsel and thereafter enter a case
management order: (1) identifying the issues the mediator should
address to resolve the parties' custodial dispute; and (2)
32 A-4030-12T2
setting an initial two-month deadline to report back as required
under Rule 5:8-1, with the proviso that this time period can be
extended "on good cause shown." Ibid. Although the parties are
not required to present expert opinion testimony during the
mediation process, they are free to agree otherwise. Ibid. In
short, the court must give the parties and the mediator all
rights conferred under Rule 5:8-1.
The case management order must also include a clear and
definitive date for ending the mediation process. Ibid. The
trial judge is ultimately responsible for the progress of any
litigation. The judge thus remains in control of the case at
all times, and must guard against either party abusing the
mediation process by treating it as tactic to delay, frustrate,
or otherwise undermine the custodial or parenting time rights of
the adverse party.
Given the parties' acrimonious relationship, as reflected
in the manner they have behaved throughout this litigation, it
appears to us unlikely that mediation will be successful.
However, a professionally trained mediator is capable of
creating an environment that fosters compromise over
intransigence, enabling these litigants to subordinate their
emotionally-driven personal interests to the higher needs of
their teenaged son to have both of his parents involved in his
33 A-4030-12T2
life. That being said, when the mediation process fails to
reach a timely acceptable outcome, the court needs to quickly
and decisively reassert its authority over the case.
B
Plenary Hearing
The record we have described here in great detail
illustrates the parties have asserted what the judge correctly
characterized as "diametrically" opposing positions regarding
what type of custodial arrangement would be in the best interest
of their now sixteen-year-old son. Plaintiff claims defendant's
home life has been and continues to be dominated by domestic
violence, which places her son in a physical danger and creates
an emotionally chaotic home environment, rendering defendant
utterly ill-suited to be Jeremy's residential custodial parent.
Defendant has refuted these allegations and claims
plaintiff's overly confrontational, needlessly punitive
parenting style has alienated Jeremy from his mother to such an
extent that the teenager is not willing to reside with her. As
an example of plaintiff's alleged inappropriate parenting-
behavior, defendant "told" the trial judge that plaintiff has at
times used excessive corporal punishment to discipline Jeremy.
According to defendant, Jeremy's age and level of maturation has
reached a point that it would be physically futile and
34 A-4030-12T2
emotionally counterproductive to force him to live with his
mother by judicial decree.
Given the parties' allegations, and to assist the trial
judge in reaching the exquisitely difficult decision concerning
what kind of residential custodial arrangement would be in
Jeremy's best interest, we strongly suggest the court consider
appointing an independent mental health professional to evaluate
the current psychological and emotional state of Jeremy and his
parents. Rule 5:3-3(b) provides the trial judge with the
discretionary authority to appoint a mental health expert to
perform parenting/custody evaluations of the parties and Jeremy.
The mental health expert appointed by the court is mandated to
conduct a "strictly non-partisan" evaluation to opine what would
be in the child's best interests. Ibid. Such an evaluation
"should consider and include reference to criteria set forth in
N.J.S.A. 9:2-4, as well as any other information or factors they
believe pertinent to each case." Ibid.
We conclude our discussion of this issue by cautioning the
trial court that reports by mental health care experts may at
times include the expert's opinion or recommendation to the
court on the ultimate question of custody. These experts may
also believe, or outright express in their reports, that their
professional training and experience gives them unique insights
35 A-4030-12T2
into the dynamics of troubled families, and they may urge the
court to adopt their recommendations or at least defer to their
professional judgments on the issue of custody and/or parenting
time. Although the opinions of mental health practitioners or
of any other professionals in the various fields related to the
human psyche should be carefully considered by a judge when
appropriate, such opinions do not relieve the trial judge from
the ultimate responsibility of determining what type of custody
arrangement is in the best interest of the child. The burden of
making and explaining that decision remains at all times the
exclusive obligation of the trial judge and can never be
delegated to any other party. See Mackowski v. Mackowski, 317
N.J. Super. 8, 13 (App. Div. 1998) ("Ceding fact-finding
responsibility to another party dilutes our ability, as judges,
to decide issues based on the 'best evidence' [of the child]
available.").
C
Interviewing Jeremy
The record here shows that at various times during the
multiple hearings conducted by the trial judge both the parties
and attorneys made allegations, proffers, and representations
describing Jeremy's emotional state concerning his various
interactions with the parties and their respective spouse and/or
36 A-4030-12T2
"significant other." The central figure in this family drama is
unquestionably this now sixteen-year-old juvenile. Both parties
made glowing representations to the trial judge about his
intellectual attributes, his academic prowess, and his emotional
maturity. Unfortunately, both sides have also claimed Jeremy
has been significantly harmed while in the physical custody of
the other parent, and will be exposed to even greater harm if
forced by the court to reside with the other parent.
In our view, the discretionary authority conferred to the
trial judge under Rule 5:8-6 was precisely intended to be
exercised in cases such as this one. We recognize a previous
version of Rule 5:8-6 provided that "the [trial] court shall . .
. at the request of a litigant conduct an interview with the
child(ren) if the child(ren) are age 7 or older." Mackowski,
supra, 317 N.J. Super. at 11 (emphasis added). We also
acknowledge that at the recommendation of the Family Practice
Committee and based, in part, on the reasoning expressed by our
colleague Judge Kestin in his concurring opinion in Mackowski,4
4
Judge Kestin noted:
I believe that child interviews in custody
cases are unwise because they are harmful to
the child, often irreparably so, with no
significant offsetting benefit; and they
impact in subtle and potentially destructive
ways on parent-child relationships. Once a
(continued)
37 A-4030-12T2
the Supreme Court amended Rule 5:8-6, effective September 3,
2002. The rule now reads as follows:
Where the court finds that the custody of
children is a genuine and substantial issue,
the court shall set a hearing date no later
than six months after the last responsive
pleading. The court may, in order to
protect the best interests of the children,
conduct the custody hearing in a family
action prior to a final hearing of the
entire family action. As part of the
custody hearing, the court may on its own
motion or at the request of a litigant
conduct an in camera interview with the
child(ren). In the absence of good cause,
the decision to conduct an interview shall
be made before trial. If the court elects
not to conduct an interview, it shall place
its reasons on the record. If the court
elects to conduct an interview, it shall
afford counsel the opportunity to submit
questions for the court's use during the
interview and shall place on the record its
reasons for not asking any question thus
submitted. A stenographic or recorded
record shall be made of each interview in
its entirety. Transcripts thereof shall be
provided to counsel and the parties upon
request and payment for the cost. However,
(continued)
judge, as decision maker, conducts an
interview with a child when the pending
question is custody, nothing the judge or
any other person can say or do will ever
convince the child that he or she is not
responsible for the ultimate decision that
is made. This is a burden no child, of any
age, should ever carry; it is one that may
weigh heavily for years to come.
[Mackowski, supra, 317 N.J. Super. at 15
(Kestin, J., concurring).]
38 A-4030-12T2
neither parent shall discuss nor reveal the
contents of the interview with the children
or third parties without permission of the
court. Counsel shall have the right to
provide the transcript or its contents to
any expert retained on the issue of custody.
Any judgment or order pursuant to this
hearing shall be treated as a final judgment
or order for custody.
[Rule 5:8-6 (emphasis added).]
By replacing the word "shall" in the pre-2002 version of
the Rule with the word "may," the Supreme Court made clear that
the decision whether to interview a child in a contested custody
case is left to the sound discretion of the trial judge, which,
as in all matters affecting children, must be guided by the best
interest of the child. The Rule also provides that "in the
absence of good cause," the trial judge should decide whether to
interview the child before the start of the trial.5 Ibid.
Of particular relevance here, Rule 5:8-6 also contains
equally clear, non-discretionary mandates:
If the court elects not to conduct an
interview, it shall place its reasons on the
record. If the court elects to conduct an
interview, it shall afford counsel the
opportunity to submit questions for the
court's use during the interview and shall
5
Although Rule 5:8-6 uses the word "trial," we discern no
rational basis for not applying the Rule to an evidentiary
hearing in cases such as this one, where the parties are
contesting the custody of their child in a non-matrimonial
dissolution setting.
39 A-4030-12T2
place on the record its reasons for not
asking any question thus submitted.
[(Emphasis added).]
Without belaboring the point, the record developed before
the trial court shows no effort by the trial judge to comply
with these requirements. Although the Rule also directs that a
certain protocol be followed if the judge decides to interview
the child, these issues are not relevant here because the
judge's ambivalence about whether to interview Jeremy left us
without a reviewable record on the vital threshold issues.
In the interest of providing the Family Part with some
guidance on how to address the difficult discretionary decision
of whether to interview a child, we suggest our colleague at the
trial level consider the following words written by Judge
Carchman in Mackowski over sixteen years ago:
We appreciate the concern expressed by the
judge that by compelling [this sixteen-year-
old girl] to submit to an interview, the
judge was compromising her loyalty to both
parents by requiring her to "choose between
the two." While such a view may have
surface allure, in reality, it is both too
narrow and, ultimately, unfair to the child.
In making a determination as to an award of
custody, or in this case a change in
custody, a judge is charged with considering
the factors set forth in N.J.S.A. 9:2-4,
including an assessment of "the preference
of the child when of sufficient age and
capacity to reason so as to form an
intelligent decision." The proper
assessment of a child's ability to
40 A-4030-12T2
participate in the decision-making process,
a right protected by statute, cannot be
performed by a simple reading of an
affidavit or letter from the child. We do
not countenance such decision-making where
there are contested issues requiring a
plenary hearing, and we cannot accept the
denial of a hearing premised on a notion or
hope that such denial is protecting the
child. The child has a right to be heard
and voice an opinion to the finder of fact
and ultimate decision-maker. The court need
not be bound by the child's view but that
cannot be a basis for denying the child the
right to express a view if he or she chooses
to do so.
We recognize that some judges prefer not to
be involved in a process which can be
uncomfortable for both the judge and the
child. That, however, provides no justifica-
tion for abrogating the responsibility to
perform a function mandated by our rules[6] of
court and necessary to fulfill a statutory
duty. The concern that judges are ill-
equipped to conduct such interviews speaks
to the need for enhanced judicial training.
A carefully conceived and conducted interview
can produce facts, including, among other
things, information about interests,
activities with parents, living arrangements
and friends, that may be dispositive and at
no time require that the child be confronted
with the ultimate question requiring that an
election between parents be made. We agree
that no child should be asked to select
between two opposing parents, and R. 5:8-6
does not speak in such stark terms. In this
case, [the child] was sixteen years old,
less than two years from majority. She
filed a letter with the court expressing her
6
Obviously, the September 2002 amendment to the Rule no longer
makes this mandatory. We nevertheless strongly subscribe to the
wisdom permeating Judge Carchman's words.
41 A-4030-12T2
preference for living with her father. An
interview was necessary to allow the judge
to carefully test the bona fides of [the
child]'s alleged choice.
[Mackowski, supra, 317 N.J. Super. at 12-13
(emphasis added) (footnotes omitted).]
As we noted earlier, the amendment to Rule 5:8-6 making the
decision to interview a child in a custody dispute discretionary
by the judge came to past in part by recommendations made by the
Family Practice Committee. Pressler & Verniero, Current N.J.
Court Rules, comments on R. 5:8-6 (2015). The report of the
Family Practice Committee included the recommendations of the
Custody and Parenting Time Subcommittee that formed, at least in
part, the basis for amendments to Rule 5:8-6 adopted by the
Supreme Court in 2002. The Subcommittee's report emphasized and
contrasted the Rule's then inflexible command for the trial
judge to interview a child who was at least seven years old,
with the more balanced and sensitive approach endorsed by the
Legislature in N.J.S.A. 9:2-4.
This criticism of the Rule's inflexibility before the 2002
amendment was well-founded. By contrast, the preamble to
N.J.S.A. 9:2-4 describes the public policy underpinning its
requirements and strikes the proper balance to guide the court
in its implementation:
42 A-4030-12T2
The Legislature finds and declares that it
is in the public policy of this State to
assure minor children of frequent and
continuing contact with both parents after
the parents have separated or dissolved
their marriage and that it is in the public
interest to encourage parents to share the
rights and responsibilities of child rearing
in order to effect this policy.
Towards that end, N.J.S.A. 9:2-4(c) provides:
In 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 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. A parent shall not
be deemed unfit unless the parents' conduct
has a substantial adverse effect on the
child.
[(Emphasis added).]
This statute identifies the key elements the Family Part
Judge must address when confronted with the awesome
43 A-4030-12T2
responsibility of deciding who should have custody of the child.
The Supreme Court has made clear that "in all custody
determinations, the preference of the children of 'sufficient
age and capacity' must be accorded 'due weight.'" Beck v. Beck,
86 N.J. 480, 501 (1981). Given Jeremy's age, alleged emotional
maturity, and level of intelligence, the trial judge here was
clearly required to take into consideration Jeremy's feelings
and desires concerning where and with whom he should live. At
the very least, Rule 5:8-6 required the judge to place on the
record his reasons for not interviewing this fourteen-year-old
boy. Peregoy v. Peregoy, 358 N.J. Super. 179, 206 (App. Div.
2003).
If the judge elects to interview Jeremy, (as the prevailing
circumstances here strongly indicate he should), Rule 5:8-6
mandates the court to: (1) conduct an interview with the child
in camera7; (2) "afford counsel the opportunity to submit
questions for the court's use during the interview"; (2) "place
on the record its reasons for not asking any question thus
submitted"; (3) create and preserve a stenographic or recorded
7
"The interview occurs in camera because the child is entitled
to a degree of privacy which preserves, so far as possible, the
child's 'freedom of expression.'" Uherek v. Sathe, 391 N.J.
Super. 164, 168 (App. Div.), certif. denied, 192 N.J. 72 (2007)
(quoting Lavene v. Lavene, 148 N.J. Super. 267, 272 (App. Div.
1977)).
44 A-4030-12T2
audio record of each interview in its entirety; and (4) provide
transcripts of the interview(s) to counsel and the parties 8 upon
request and payment for the cost. Ibid.
The court should also ensure and make clear that "neither
parent" is permitted "to discuss nor reveal the contents of the
interview with the children or third parties without permission
of the court." Ibid. We recommend the court enter a case
management order to memorialize this particularly important
aspect of the interview process. This order must make clear
that any violation of this confidentiality provision may expose
the responsible individual to sanctions pursuant to either a
motion to enforce litigant's rights brought by a party under
Rule 1:10-3, or Summary Contempt Proceedings initiated by an
Order to Show Cause under Rule 1:10-2.
We sympathize with the trial judge's consternation and
share his concern for the emotional trauma Jeremy may experience
during the interview process. N.J.S.A. 9:2-4(c) does not
require the judge to ask a child to select between two opposing
8
We emphasize, however, that the mandate in Rule 5:8-6 to
provide transcripts of the court's interview with a child to
counsel and the parties applies only to an actively pending
contested custody case. In the interest of clarity, we reaffirm
our holding in Uherek, supra, that "absent that circumstance,"
there is no legal basis for the turnover of the child's private
communications with the court, not "even to a parent." Id. at
169.
45 A-4030-12T2
parents. The statute only requires the judge to consider the
child's "preference," when he or she is "of sufficient age and
capacity to reason so as to form an intelligent decision[.]" In
going about this exquisitely delicate task, we strongly suggest
trial judges to keep in mind Judge Carchman's wise observations
in Mackowski:
Too often, judges deciding issues in the
Family Part must rely solely on the "voices"
of the attorneys who prepare the competing
affidavits and certifications on the
pretense that the litigant is speaking.
[The judge's interview] insures that where
custody is a "genuine and substantial"
issue, the judge will not be insulated from
seeing and hearing the subject of the
dispute. The "voice" seen and heard will
not be that of the lawyer or litigant but
that of the child who is the subject of the
dispute. The value of a properly conducted
interview enabling the judge to see and hear
the child first-hand outweighs the
possibility of harm that may befall a child
by being subjected to the interview process.
On balance, it is not the interview that is
ultimately harmful, but the custody dispute
between the parties that potentially wreaks
havoc with the child.
[Mackowski, supra, 317 N.J. Super. at 14].
The Supreme Court has recognized that Family Part judges
have developed a special expertise in dealing with family and
family-type matters. Cesare, supra, 154 N.J. at 412-13. We have
complete confidence that this judge, indeed all of the judges
assigned to the Family Part, will strive to conduct the difficult
46 A-4030-12T2
task of interviewing children in contested custody cases with
dignity, compassion, and great sensitivity to the extraordinary
circumstances that have brought this child before the court.
VII
Conclusion
The record shows the trial judge was unaware that under
Rule 5:8-1 he was obligated to refer this case to mediation
because Jeremy's custody and parenting time were genuine and
substantial issues in dispute. We are therefore compelled to
remand this case for the parties to submit to mediation. The
record also reveals that the parties have been heretofore
utterly unwilling to subordinate their antipathy for each other
and reach a compromise position that would be in the best
interest of their now sixteen-year-old son.
We thus strongly suggest the trial court closely monitor
the mediation process by way of periodic reports from the
mediator. Unless the court is satisfied that the mediation
process is producing meaningful and measurable progress, the
court should reassert jurisdiction and schedule a plenary
hearing forthwith. On this point, we are compelled to note that
the informality that permeated all of the court's interactions
with the parties and their respective attorneys here were not
only unproductive, but ultimately undermined the solemnity and
47 A-4030-12T2
decorum necessary for effective courtroom management. We
reaffirm the standard we articulated twelve years ago:
Trial judges are given wide discretion in
exercising control over their courtrooms.
However, the trial judge has the ultimate
responsibility of conducting adjudicative
proceedings in a manner that complies with
required formality in the taking of evidence
and the rendering of findings.
. . . .
[F]actual findings must be supported by
evidence admitted during the hearing, which
shall be held on the record. All
documentary exhibits considered by the court
must be clearly identified for appellate
review. R. 1:2-3. Testimonial evidence must
be presented through witnesses who are under
oath, N.J.R.E. 603, and subject to cross-
examination. N.J.R.E. 611.
[N.J. Div. of Youth & Family Servs. v. J.Y.,
352 N.J. Super. 245, 264-65 (App. Div. 2002)
(internal citations omitted).]
Here, the parties' dramatically different and conflicting
factual accounts need to be carefully scrutinized by the
professionally trained eyes of an experienced Family Part Judge,
but only after both parties have been subjected to aggressive
cross-examination, the best tool we know for clearing up
obscurity, minimizing hyperbole, and revealing truth.
Reversed and remanded. We do not retain jurisdiction.
48 A-4030-12T2