O.M. v. R.T. and E.T. ( 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NOT FOR PUBLICATION WITHOUT THE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-1924-23
O.M.,
Plaintiff-Respondent,
v.
R.T.,
Defendant-Appellant,
and
E.T.,
Defendant.
_________________________
Submitted July 9, 2024 – Decided July 29, 2024
Before Judges Gilson and Smith.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Chancery Division, Family Part,
Burlington County, Docket No. FD-03-0348-24.
Law Office of Thomas J. Hurley, LLC, attorneys for
appellant (Thomas J. Hurley, on the briefs).
Martine, Katz Scanlon & Schimmel, PA, attorneys for
respondent (Sarah Martine Belfi and Briana Hamm
Ahner, on the briefs).
PER CURIAM
We grant leave to appeal a January 18, 2024 order directing unification
therapy between plaintiff and a twelve-year-old child. Plaintiff had only
recently been discovered to be the biological father of the child. Thus, the
question presented on this appeal is what are the appropriate procedures that
should be followed to introduce the newly-discovered biological father to a child
who, for most of his life, was raised believing that another man was his
biological father.
The record establishes that the parties were originally pursuing an
appropriate course of action that included (1) retaining an expert therapist to
meet with the biological father, the psychological father, the mother, and the
child; (2) the expert then preparing a report and making recommendations to the
court; and (3) the court thereafter considering appropriate steps, including
ordering unification therapy and determining custody issues.
Unfortunately, the expert therapist originally appointed could not serve.
Thereafter, the parties were not able to agree on a new expert therapist.
Ultimately, the family court entered the January 18, 2024 order directing
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unification therapy without an initial expert evaluation. Given these facts, we
vacate the January 18, 2024 order and remand this matter with direction that the
family court proceed as originally planned. That is, (1) the court is to appoint
an expert therapist to individually meet with the biological father, biological
mother, the psychological father, the child, and other appropriate persons,
including the two step-siblings and experts already working with the family; (2)
the expert is then to prepare a report making recommendations to the court; and
(3) the court can then consider if, how, and when unification therapy should be
conducted between plaintiff and the child. Once the family court receives the
expert therapist's report and makes the determination on unification therapy, the
court can use its discretion to consider the psychological father's request for
discovery concerning the biological father.
I.
We discern the facts from the record presented on this appeal.
The child, A.T. (Alan), was born in June 2012. 1 E.T. (Edith) is Alan's
biological mother. R.T. (Roy) and Edith were married in March 2013. From
Alan's birth, Roy believed he was Alan's biological father and acted as Alan's
1
Because of the privacy issues involved with this custody dispute over a minor
child, we use initials and fictitious names. See R. 1:38-3(d).
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father by assuming the responsibilities for his care and support. For
approximately the next ten years, Roy continued to believe he was Alan's
biological father and continued to care for and provide for Alan. During that
time, Roy and Edith had two children together: sons who were born in October
2013 and July 2016.
Sometime in or around 2022, Roy learned that he was not Alan's biological
father.2 In December 2022, Edith filed a complaint to divorce Roy based on
irreconcilable differences. In February 2023, after having learned that O.M.
(Orlando) might be Alan's biological father, Roy filed an answer and
counterclaims seeking to compel Orlando's testimony and subject him to the
family court's jurisdiction for discovery purposes. Thereafter, a paternity test
confirmed that Orlando was Alan's biological father. Roy then filed a separate
counterclaim requesting to annul the marriage under N.J.S.A. 2A:34-1.
Orlando moved to intervene in the divorce action. At approximately the
same time, Roy moved for certain relief concerning Alan, including discovery
from Orlando. In response to those motions, the family court entered an order
on September 21, 2023 (the September 2023 order). In that order, the court,
2
The parties are not precise in identifying when Roy learned that Alan was not
his biological son.
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among other things, (1) recognized Roy as Alan's psychological father; (2)
recognized Orlando as Alan's biological father; (3) appointed a therapist, Shelly
Lukoff, to interview Roy, Edith, Orlando, Alan, and the two other sons; (4)
directed Lukoff to consult with Dr. Harry Green, who was acting as a custody
evaluator in the divorce action, and then to prepare reports with Dr. Green to be
submitted to the court; and (5) denied in part Orlando's request to intervene in
the divorce action and instead directed Orlando to file a separate family
dissolution (FD) matter to address the custody and parenting time concerning
Alan.
Shortly after her appointment, Lukoff informed the parties that she could
not serve as the therapist. Thereafter, the parties could not agree on a new
therapist. In November 2023, Orlando moved in the FD matter to appoint a new
therapist, Dr. Danielle Forshee. Orlando also iterated his request for unification
therapy with Alan.
On January 18, 2024, the family court entered an order in the FD action
directing, among other things, (1) Orlando and Alan to engage in unification
therapy with Dr. Forshee; and (2) denying without prejudice Roy's request for
discovery concerning Orlando.
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In the meantime, in December 2023, a judgment of nullity (JON) was
entered in the divorce action between Edith and Roy. The JON nullified Edith
and Roy's marriage under N.J.S.A. 2A:34-1(1)(d). Edith and Roy also signed a
Property Settlement Agreement (PSA). Under the PSA, Edith and Roy agreed
that Roy was Alan's psychological father. They also agreed that they would
share joint legal custody of Alan, as well as their other two sons. In addition,
Edith and Roy agreed that Roy would be the parent of primary residential
custody for Alan and Alan's two brothers and that Edith would enjoy parenting
time with the children. Orlando contended that he was not notified of the
custody arrangements agreed to in the PSA.
Following the entry of the January 18, 2024 order, Roy moved to stay that
order. The family court denied that motion. Roy then filed a motion with us to
stay the January 18, 2024 order. On May 9, 2024, we granted that stay. We also
directed Roy to file a motion for leave to appeal the January 18, 2024 order.
Further, we directed all parties to file briefs addressing the merits of the appeal
of the January 18, 2024 order, including the proper procedures to be conducted
before unification therapy commenced. We also informed the parties that we
would list this matter for plenary consideration on our July 9, 2024 calendar.
We now grant leave to appeal the January 18, 2024 order.
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II.
A review of the papers submitted on this appeal establishes that the parties
had originally consented to appropriate procedures to introduce Orlando to Alan
as his biological father. Those procedures, which were set forth in the
September 2023 order, included: (1) the retention of an appropriate expert; (2)
an investigation by the expert and custody evaluator; (3) a report from the expert
to the court making recommendations, including if, how, and when unification
therapy should be conducted; and (4) further consideration of issues related to
the custody and support of Alan.
Apparently because of a breakdown in communication among the parties,
those procedures have not been implemented. Instead, the January 18, 2024
order mandated unification therapy without an appropriate evaluation of if,
when, and how that unification therapy should be conducted.
Given the facts of this case, appropriate procedures are necessary before
Orlando and Alan engage in unification therapy. Before ordering reunification
sessions to begin, family courts should hold a plenary hearing, consider
submissions from all parties addressing the child's best interests, and facilitate
an interview of the child. See P.T. v. M.S., 325 N.J. Super. 193, 213 (App. Div.
1999). Courts "rely heavily on the expertise of psychologists and other mental
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health professionals" when considering evidence concerning the child's best
interests. Kinsella v. Kinsella, 150 N.J. 276, 318 (1997). When determining
whether to order unification therapy, family courts should also consider the same
factors they consider when evaluating child custody issues. See N.J.S.A. 9:2-
4(c). Those factors include: (1) "the parents' ability to agree, communicate and
cooperate in matters relating to the child;" (2) "the parents' willingness to accept
custody and any history of unwillingness to allow parenting time not based on
substantiated abuse;" (3) "the interaction and relationship of the child with its
parents and siblings;" (4) "the history of domestic violence, if any;" (5) "the
safety of the child and the safety of either parent from physical abuse by the
other parent;" (6) "the preference of the child when of sufficient age and capacity
to reason so as to form an intelligent decision;" (7) "the needs of the child;" (8)
"the stability of the home environment offered;" (9) "the quality and continuity
of the child's education;" (10) "the fitness of the parents;" (11) "the geographical
proximity of the parents' homes;" (12) "the extent and quality of the time spent
with the child prior to or subsequent to the separation;" (13) "the parents'
employment responsibilities;" and (14) "the age and number of the children."
Ibid.; see also J.G. v. J.H., 457 N.J. Super. 365, 375 (App. Div. 2019)
(explaining that "[c]ustody issues are resolved using a best interests analysis that
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gives weight to the factors set forth in N.J.S.A. 9:2-4(c)" (quoting Hand v. Hand,
391 N.J. Super. 102, 105 (App. Div. 2007))); R. 5:8-1. These factors can be
appropriately modified or tailored to address a situation involving a newly-
discovered biological father, a psychological father, a biological mother, and a
child.
We, therefore, vacate the January 18, 2024 order and remand with
direction that the family court (1) appoint an expert to conduct an evaluation;
(2) ensure that evaluation includes interviews with Roy, Edith, Orlando, Alan,
and, if appropriate, the other two children; (3) direct the expert to also consult
with Dr. Green and any other therapists or consultants who have worked with
the family; and (4) direct the expert to then prepare a report making
recommendations to the court on if, when, and how unification therapy between
Orlando and Alan should be conducted. Thereafter, the court can address the
custody and support issues related to Alan and Roy's request for discovery
concerning Orlando.
We discern no basis to question the selection of Dr. Forshee. The record
demonstrates that Dr. Forshee is qualified to serve as the expert therapist. Dr.
Forshee, however, must engage in the preliminary evaluations required by this
opinion. Hopefully, if the procedures are properly followed and the evaluation
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supports unification therapy between Orlando and Alan, Alan will benefit by
having the love and support of Roy, Orlando, and Edith. We also hope the
parties focus on and work together in Alan's best interests because a child can
also benefit by having more love.
Reversed and remanded consistent with this opinion. We do not retain
jurisdiction.
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