K.P. v. E.P. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-3549-21
K.P.,1
Plaintiff-Respondent,
v.
E.P.,
Defendant-Appellant.
Argued November 15, 2023 – Decided January 23, 2024
Before Judges Currier and Vanek.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FM-12-0560-16.
Marc J. Rogoff argued the cause for appellant.
K.P., respondent, argued the cause pro se.
PER CURIAM
1
We use the parties' initials pursuant to Rule 1:38-3(a).
Defendant appeals from a June 29, 2022 Family Part order vacating a
December 15, 2016 consent order (consent order). Because we are satisfied the
trial court did not abuse its discretion in vacating the parties' consent order, we
affirm.
I.
The parties divorced on May 23, 2016 and have two children together:
E.R.P., born in February 2005, and M.P., born in February 2008. The parties
share joint physical and legal custody of the children.
After learning that plaintiff's boyfriend, S.J.L., was a convicted felon,2
defendant filed an order to show cause seeking to prevent S.J.L. from having
any contact with the children. The parties executed a consent order on
December 15, 2016, which prevented (1) S.J.L. from being present during
plaintiff's parenting time with the children; (2) any form of contact between
2
In 2010, S.J.L. was convicted of second-degree robbery, N.J.S.A. 2C:15-1,
and second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). He was
sentenced to seven years in state prison with a three-year parole disqualification
period. Prior to these charges, S.J.L. was convicted of criminal mischief for
damaging property, N.J.S.A. 2C:17-3(a)(1); third-degree distribution of cocaine
on or near school property, N.J.S.A. 2C:35-7; first-degree robbery, N.J.S.A.
2C:15-1; second-degree possession of a firearm for an unlawful purpose,
N.J.S.A. 2C:39-4(a); fourth-degree rioting, N.J.S.A. 2C:33-1(a)(2); fourth-
degree resisting arrest, N.J.S.A. 2C:29-2(a); and shoplifting, N.J.S.A. 2C:20-
11(b)(1). He served several prison terms for those convictions.
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S.J.L. and the children; and (3) "S.J.L.[] from being in the vicinity of any
[pickup] or drop[-]off of the children." The children were eleven and eight years
old at the time.
The consent order stipulated that the restraints were to be enforced "unless
the family counselor opine[d] that it[ was] in the best interest of the children"
for S.J.L. to be present during plaintiff's parenting time. The consent order
required the parties and children to "attend family counseling to address
transition issues, including but not limited to, the impact . . . S.J.L. [was] having
upon the children and any new relationships of the parties."
In the ensuing years, plaintiff filed three applications to vacate the consent
order. The trial court denied plaintiff's first application in April 2017 and
appointed a Guardian Ad Litem (GAL) for the children. In the GAL's reports to
the court, she requested the court restrict the parties from discussing the "S.J.L.
issue" with the children and recommended the children begin therapy.
Plaintiff filed a second motion to vacate the consent order in February
2019. At that time, the GAL recommended the appointment of a psychologist
to conduct a best interest evaluation as to what relationship, if any, S.J.L. should
have with the children. Thereafter, the trial court appointed Mathias R.
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Hagovsky, Ph.D., to determine whether it was in the children's best interest to
continue to restrain S.J.L. from being present during plaintiff's parenting time.
Dr. Hagovsky issued his report on January 31, 2021, recommending S.J.L.
have contact and a relationship with the children. Plaintiff subsequently filed a
third motion to vacate the consent order based on Dr. Hagovsky's report. The
court denied the motion without prejudice pending a plenary hearing on the
issue.
The plenary hearing was held on July 21 and September 29, 2021. The
trial court heard testimony from Dr. Hagovsky, the GAL, defendant, and
defendant's witnesses: his nephew, his long-time friend, and plaintiff's sister
who is married to defendant's nephew.
During the hearing, Dr. Hagovsky testified that he: interviewed the
children individually, separate from the parties; interviewed the parties;
observed sessions with the children and each parent; conducted collateral
interviews of S.J.L.'s therapist, S.J.L.'s ex-wife and daughter; reviewed the
results of psychological testing and conducted home visits.
According to Dr. Hagovsky, the results of the psychological tests were
insignificant. Although the testing "suggest[ed] some antisocial and histrionic
features," Dr. Hagovsky stated it "f[e]ll far short from a formal diagnosis of
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anything coming close to a full personality disorder." Dr. Hagovsky testified
that S.J.L. stated in his interview that "he will not be bullied in any way" and
"will always react to someone who attempts to bully him" based on his life
experiences, particularly his time in prison.
Dr. Hagovsky also testified that S.J.L. said "he had always wanted to be a
gangster" and "always had problems with authority." Dr. Hagovsky agreed with
defense counsel's characterization of S.J.L. as a "career criminal since he's been
a juvenile" and agreed S.J.L. was involved in altercations with defendant, as
well as S.J.L.'s friends and family following his release from prison. Although
Dr. Hagovsky stated he was concerned about S.J.L.'s comments regarding
bullying, he testified he did not have any concerns with S.J.L. having contact
with the children.
Dr. Hagovsky also testified regarding two interviews he had with M.P. In
the first interview, then eleven-year-old M.P. expressed her difficulty in
accepting her mother had a boyfriend so soon after the divorce was finalized.
She was aware her father did not like S.J.L.. In discussing M.P.'s second
interview—a year later, Dr. Hagovsky testified M.P. "had softened her
position":
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[S]he still felt that it would be important for her to have
as much time as possible with her mom, without anyone
there.
But she said that she had gotten to the point that
she didn't care anymore. And if that was something that
her mom wanted to do, she would be okay with it.
According to Dr. Hagovsky, the tenor of his interviews with E.R.P. were
similar. In the first interview, she said she did not like having S.J.L. around
since "it was right after the divorce, and she didn't know him." She too was
aware her father did not like S.J.L.. But, Dr. Hagovsky said, E.R.P. "was okay
with her mother having a boyfriend, and stated that if he ma[de] her mother
happy, then that [was] more important to her than her feelings or her father's
feelings might be. But she didn't want him around all of the time."
Dr. Hagovsky testified that during the second interview with E.R.P., now
a high school sophomore, she indicated:
[S]he . . . told her mother that she didn't have a problem
with her boyfriend. And that all she cares about is her
mother's happiness. And that she said she is her own
person. Doesn't let anybody influence her. She said
that she also talked with her father in the past about his
girlfriend and her children.
Although she said her dad did not have a
girlfriend at the time I spoke with her. But she said it
was okay for her mom to have her boyfriend there, just
as long as it wasn't all the time. And she felt that as
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long as she had quality time with her mother alone, then
. . . she would be okay with that.
Dr. Hagovsky testified there was no indication from the children that
S.J.L. hurt them. He believed the children's objection to S.J.L. was "not what
he was doing or what he was saying, but that he was simply there. And they
weren't ready . . . to have someone introduced to them so early on after the
divorce." When asked if the children would "suffer some kind of psychological
harm" if they were not permitted to be around S.J.L., Dr. Hagovsky testified:
It's my opinion that they are already suffering
something. How much of it is hard to tell. But they are
already unhappy with the current situation. They told
me that. They said they're okay. . . . They would like
things to be more normal, is another way to put it, with
their mom.
....
It's my opinion that children who are put in a
position of conflict between their parents feel
responsible for the conflict. It's not that they don't feel
responsible. They always feel responsible. It's a
question of how much they feel responsible.
So, there's no doubt in my opinion, they didn't tell
me this, it's my opinion, as a [p]sychologist, who deals
with people and children in these situations, it's my
opinion that that is an underlying psychological process
that happens to children when they are in a position of
conflict between their parents. Which is what this is.
They know that their parents disagree.
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Regarding his interview with S.J.L.'s ex-wife, Dr. Hagovsky testified:
[S]he was well aware that . . . S.J.L. ha[s] had his
problems in the past, but . . . he never put the children
in harm's way. He has always been a good father. Has
turned his life around. And that he has had a
considerable amount of contact, she told me, with her
children's children, the grandchildren.
She said she understood why [defendant] might
feel as he does. But she said he doesn't know . . . S.J.L.
certainly like she does. And [she] did not believe that
it was the right thing for [defendant] to stand in the way
of [S.J.L.] having access to [plaintiff's] children.
During Dr. Hagovsky's interview with S.J.L.'s daughter, she told him that
"she has never had any difficulty with having her father around [her] kids." Dr.
Hagovsky said the interview
reinforced [his] impression that when it comes to
children, as opposed to some of the things that . . . S.J.L.
may have done in his life, . . . he appears to be able to
act in an appropriate manner. And [it's] sufficient to . .
. have someone like his ex-wife and daughter very
comfortable with . . . having him around them, and the
grandchildren.
Dr. Hagovsky told the court he recommended plaintiff discuss with the
children a plan for contact with S.J.L. that "they would be comfortable with"
and is "consistent with their needs and expectations," and that defendant allow
plaintiff to have a relationship with S.J.L. in the children's presence and to not
do anything that would make it more difficult for the children.
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Dr. Hagovsky testified "[t]his is about being realistic, in my opinion, and
moving on." He elaborated:
If . . . S.J.L. has turned his life around, which he
has appeared to have, if he is no longer involved in
criminal activity, he's paid his dues, it looks like, from
my perspective, in terms of his criminal activity. He
has a full[-]time job. He's maintained a relationship
with [plaintiff] for several years.
I think it's a question of taking into consideration
the ages of the children, and what their needs are, and
moving on. That's a challenge for all of them. That's
not just for [defendant]. That's a challenge for
everybody. But it is in the children's best interest, if
that's what they want for their mom, if that's what they
want for them, they're old enough now. And I think
they should be given an opportunity to do that.
That doesn't mean that, you know, that this is a
perfect recommendation, or that it's not possible that it
fails. There's no guarantees. I wrote that in my report.
. . . I am imploring them to move on. Not to forget.
But to move on.
The GAL testified regarding a 2017 incident where defendant, S.J.L., and
plaintiff got into a verbal dispute over FaceTime in the presence of the children,
who were crying in the room with defendant. According to the GAL, defendant
accused plaintiff of driving with the children while drunk, plaintiff accused
defendant of being a liar, and S.J.L. yelled at defendant that he would "scr*w
[defendant's] mother." The GAL described the incident as "terrible" and that
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the adults were "[b]ad adults across the board." The GAL further testified she
had not been involved in any issues between the parties and the children since
2018.
Defendant's nephew testified that on April 2, 2017, after S.J.L. and
plaintiff drove past his house after midnight and yelled out his name, he called
the police and filed harassment charges. He testified the parties went to
mediation and agreed to mutual restraints and he has not had contact with S.J.L.
in four years.
The nephew's wife, who is plaintiff's sister, testified she had a close
relationship with plaintiff prior to the divorce, but they were not on speaking
terms when plaintiff began dating S.J.L. The nephew's wife testified she was
concerned about S.J.L.'s lengthy criminal past and that she did not believe he
had changed since the harassment incident. In addressing a harassment
complaint that the nephew's wife lodged against S.J.L. on April 5, 2017, she
testified S.J.L. sent her "one or two [texts] . . . . introducing himself[,]" but she
did not want him texting her.
Defendant's friend also testified. He told the court he was at defendant's
house during the 2017 FaceTime incident, and heard S.J.L. say, "how about I
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f**k your dead mother" and "come see me" in front of the children, causing
E.R.P. to "storm[] out of the room."
During defendant's testimony, he stated he first learned of S.J.L.'s criminal
history after E.R.P. searched S.J.L.'s name online. Defendant testified that
although there have not been any problems with S.J.L. since they attended
mediation in 2017, he does not believe S.J.L. is rehabilitated. Defendant
referred to S.J.L.'s comments regarding being a gangster, stating:
[He said] that he . . . aspired to be a gangster. This was
his aspiration in life. And then, not only that, he's got
a problem with authority, and anger issues. Has he been
cured of this, is there proof of this? Am I willing to
take a chance with my two little girls? He's a high[-
]risk factor to the welfare of my children.
Defendant told the court he would not agree to allow S.J.L. near his children
because of his criminal record.
In February 2022, the court sua sponte ordered in camera interviews of
the children, advising the interviews were necessary to assist the court in
deciding the children's best interests. Prior to conducting the interviews, the
court invited both parties to submit questions to be posed to the children .
The in camera interviews were conducted on February 17, 2022. At the
time, M.P. was fourteen and E.R.P. was about to turn seventeen years old. M.P.
told the judge that she did not like sharing her mother so soon after the divorce,
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and that S.J.L.'s immaturity made it uncomfortable to be around him at that time.
While she did not think the restriction against S.J.L. had to be so strict, she had
told plaintiff she does not want S.J.L. around. M.P. said she did not know what
she wanted the court to do.
E.R.P. told the judge that when she was younger, S.J.L. told her she
needed to grow up and accept he was going to be in her life which "didn't sit
right with [her]." She said she learned about S.J.L.'s criminal background when
she searched his name online and came upon his mugshot and criminal record.
However, she said she was not bothered being around someone with a criminal
record.
E.R.P. told the judge that if S.J.L. was permitted to see her, she would
want a limit on the amount of time. She told the judge she has stopped caring
as much as she did earlier because the issue has "been going on for too long,"
she did not want to deal with it, and she wants her mother to be happy.
Following the interviews, the court provided both parties with the
interview transcripts and invited them to submit supplemental responses, which
they did.
II.
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On June 27, 2022, the trial judge issued an oral decision, vacating the
consent order. The judge discussed the 2017 harassment incidents. But because
there were no criminal charges and the participants agreed to mutual restraints,
the judge did not categorize these events as new criminal behavior. The judge
also explained it was appropriate for her to interview the children post-trial
because a year and a half had passed since the last interviews, and under the
court's parens patriae role it "had an obligation . . . to hear for [it]self what these
two now much older children had to say."
The judge found the children's responses to her questions were similar to
their discussions with Dr. Hagovsky. The children did not want to prevent their
mother from being in a relationship with S.J.L. nor did they want to prevent
S.J.L. from having a role in their lives. The court found E.R.P. was "fine with
it" and M.P. was "still concerned and worried about what's going on, but
indicated to the [c]ourt that she would not be adverse, should the [c]ourt permit
. . . S.J.L. to be around the children."
The trial judge reasoned:
. . . S.J.L. was released from prison in 2015. He
was released from his conditions of probation or parole
by 2018. He has had no relapse since that time. His
family members, . . . an ex-wife, a daughter, express
support for him in his relationship with children. His
counselor said he's been doing fine, and on board. Dr.
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Hagovsky administered three particular tests, one
including the child abuse, a standardized test to . . . look
at child abuse and the propensity for the same. His, all
of those testing were within normal range. There is
nothing in the record to indicate that at this point in
time, the restriction prohibiting [plaintiff] from having
. . . S.J.L. in the presence of the now [fourteen] and
[seventeen] year old daughters would be inimical to
their best interests.
. . . [T]he [c]ourt finds, based on looking at the
case law, the facts that were presented, its own
interviews with the children, its consideration of what
the [GAL] had found a number of years ago, and what
Dr. Hagovsky found in his report, and his very, very
credible testimony at the time of trial, that it is
appropriate for the [c]ourt to vacate the consent order
of December of 2016.
III.
On appeal, defendant contends the trial court abused its discretion in
vacating the consent order because plaintiff did not show it was in the children's
best interest for them to have contact with S.J.L. In addition, defendant asserts
the court further abused its discretion in conducting in camera interviews of the
children five months after the close of the trial.
"We review the Family Part judge's findings in accordance with a
deferential standard of review, recognizing the court's 'special jurisdiction and
expertise in family matters.'" Thieme v. Aucoin-Thieme, 227 N.J. 269, 282-83
(2016) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "[F]indings by the
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trial court are binding on appeal when supported by adequate, substantial,
credible evidence." Id. at 283 (quoting Cesare, 154 N.J. at 411-12).
Deference is accorded because of the family courts' "specialized
knowledge and experience in matters involving parental relationships and the
best interests of children." N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J.
420, 427 (2012). A "[c]ourt finds an abuse of discretion when a decision is
'made without a rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis.'" U.S. Bank Nat'l Ass'n v.
Guillaume, 209 N.J. 449, 467-68 (2012) (quoting Iliadis v. Wal-Mart Stores,
Inc., 191 N.J. 88, 123 (2007)).
In contrast, "all legal issues are reviewed de novo." Ricci v. Ricci, 448
N.J. Super. 546, 565 (App. Div. 2017) (citing Reese v. Weis, 430 N.J. Super.
552, 568 (App. Div. 2013)).
A.
We begin by addressing defendant's contention that the trial court abused
its discretion in vacating the consent order and allowing S.J.L. to be around the
children. Defendant asserts there is no evidence S.J.L.'s presence benefits the
children's lives. He contends that Dr. Hagovsky did not consider that issue and
instead focused on plaintiff's happiness. Defendant further contends that S.J.L.'s
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long violent criminal background "poses inherent risks to the children," there is
no evidence the risks have subsided, and the trial court erred in finding
defendant had not relapsed into criminal activity since his release from prison
in 2015.
After reviewing the record, we discern no reason to disturb the trial judge's
June 29, 2022 order vacating the parties' consent order. Both Dr. Hagovsky and
the GAL recommended to the court that S.J.L. could have a role in the children's
lives. Dr. Hagovsky specifically testified that he found it was in the children's
best interest for the parties to move forward in their lives and for defendant to
stop being a barrier regarding S.J.L.. The GAL concluded in her report to the
court that S.J.L.'s criminal past alone was not enough to uphold the consent
order.
We note that defendant's initial concerns regarding S.J.L.'s behavior in
2016 and 2017 are supported by the parties' family members' testimony, the
children's accounts, and in some of the findings of the psychological tests
conducted by Dr. Hagovsky. S.J.L. said some vulgar and inappropriate things
in front of the children. Harassment charges were filed, though ultimately
resolved in mediation.
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However, those events were over five years ago and there have been no
new reported incidents. In their most recent interviews, neither daughter
expressed any concern for harm or danger regarding S.J.L..
In light of the change in circumstances, the court did not abuse its
discretion in vacating the consent order. The court carefully considered the
testimony of numerous witnesses, including the expert opinion of a
psychologist, who the court found credible, and determined that it was
appropriate and in the children's best interest to vacate the consent order and
permit plaintiff, with the input of the children, to arrange a plan for contact with,
and inclusion of, S.J.L. in the children's lives. The daughters are older and less
opposed to S.J.L.'s presence, and plaintiff and S.J.L. have had a long and stable
relationship.3 Therefore, the trial court's decision to vacate the consent order
was supported by the evidence in the record.
B.
We briefly address defendant's contention that the trial court abused its
discretion when it conducted an in camera interview of the children five months
after the close of the plenary hearing. Defendant asserts the court's interviews
were inappropriate because there was no legal basis to support them, an expert
3
Plaintiff states in her brief that she and S.J.L. became engaged in April 2022.
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evaluation of the children had been conducted, the parties had "already
submitted proposed findings of fact and . . . law" to the court, and the court had
no special expertise in interviewing children.
Although this was not a custody determination, we find Rule 5:8-6 helpful
here as it provides the proper procedure for the trial court to follow when
conducting an in camera interview:
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 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.
Here, the trial judge determined she had good cause to conduct the post-
trial interviews with the children because it would assist her in determining the
children's best interest. She noted more than a year had elapsed since the last
interview. The judge invited both parties to submit questions prior to the
interviews. Afterwards, the court provided the parties with transcripts of the
interviews and invited them to submit supplemental responses.
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The trial court's decision to conduct an in camera interview of the children
was within its discretion and the court conducted the interview in accordance
with Rule 5:8-6. Therefore, we discern no reason to disturb the court's decision.
Affirmed.
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