S.D. VS. D.M. (FD-17-0587-11, SALEM COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3010-19
S.D.,
Plaintiff-Respondent,
v.
D.M.,
Defendant-Appellant.
________________________
Argued September 15, 2021 – Decided October 15, 2021
Before Judges Accurso and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Salem County, Docket
No. FD-17-0587-11.
David T. Garnes argued the cause for appellant.
D. Ryan Nussey argued the cause for respondent
(Klineburger and Nussey, attorneys; D. Ryan Nussey
and Carolyn G. Labin, on the brief).
PER CURIAM
In this non-dissolution matter, defendant D.M.1 appeals from the
December 13, 2019 and February 14, 2020 orders addressing custody and
parenting time issues related to the parties' son, M.M. (Mark). The December
2019 order temporarily granted plaintiff S.D. sole legal and physical custody of
Mark, and suspended defendant's in-person parenting time. The February 2020
order superseded the December 13 order; designated plaintiff as Mark's parent
of primary residence (PPR); and awarded defendant alternating weekend
parenting time as the parent of alternate residence (PAR). We affirm the
February 14 order. Because defendant conceded at oral argument that the
December 13 order is no longer in effect, we discuss it merely to provide context
to our decision.
Mark was born in 2008. His parents never married. Pursuant to a 2011
order, plaintiff was designated Mark's PPR and defendant, as the PAR, was
awarded parenting time every Thursday starting at 9:00 a.m. until Sunday at
9:00 a.m.
In May 2018, the parties entered into a consent order to jointly share legal
and physical custody of Mark. The new custodial arrangement was short-lived.
1
We utilize initials and pseudonyms to protect the confidentiality of the parties
and their child. R. 1:38-3(d)(3).
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2
In December 2018, defendant moved to be designated as Mark's PPR, alleging
the child was suffering from emotional issues. In response, plaintiff filed a cross
motion, seeking to return to the parenting time arrangement that predated the
May 2018 consent order. She contended Mark had adjusted poorly to the joint
custodial arrangement and had asked to revert to the former parenting schedule.
The parties agreed to submit to a custody evaluation and chose Dr.
Katherine Elder as their evaluator. After the evaluation commenced, defendant
addressed the trial court at a June 2019 conference and stated he wanted Dr.
Elder removed as the joint expert because he believed she was "pro-mom." By
then, defendant was self-represented. The judge denied his request and noted
the case was "on backlog." The judge stated:
I want Dr. Elder's report submitted to the court and to
the parties no later than July 30th. So, she needs to do
. . . whatever it is she needs to do, . . . pronto. And I'm
going to have case management schedule this matter for
trial in August.
Before the conference concluded, the judge repeated thrice more that the case
would be tried in August. Thereafter, the matter was assigned to another judge,
Dr. Elder withdrew from the case, and the parties agreed to proceed without a
custody evaluation.
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A newly-assigned judge conducted another conference in August 2019, by
which time defendant had retained new counsel, and the Division of Child
Placement and Permanency was investigating allegations plaintiff had abused or
neglected Mark. The judge advised the parties he "had recovered some
significant records from [the Division], and the attorneys have every right to
review them." He further confirmed the attorneys were allowed to review the
Division's records earlier that day.
A Division worker also appeared at the August 2019 conference. She
testified plaintiff completed co-parenting counseling and that the Division
recommended defendant do the same. Further, the worker testified plaintiff and
Mark underwent a psychological exam with the Division's expert, "Dr. Barr,"2
and that defendant was due to meet with Dr. Barr at the end of August. In
response to that testimony, the judge stated that once the expert's report was
completed, he wanted a copy of it. Neither attorney objected to the request.
Estimating that Dr. Barr would need approximately a month to finish his
report, the judge concluded, "I can't schedule this case for trial until November
2
The parties did not supply us with Dr. Barr's first name. Also, it appears the
doctor's report was not admitted into evidence during the parties' custody trial,
nor did Dr. Barr provide testimony to the trial court.
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at this point." Additionally, the judge informed counsel and the parties that due
to his upcoming transfer to the Criminal Part, another judge would try their case.
Following the August conference, plaintiff requested and received an
adjournment of a proceeding scheduled for November 2019. The trial court
issued a new notice dated November 1, 2019, which stated, in part, "the above
. . . matter originally scheduled for HEARING on 11/08/2019 at 8:30 [a.m.] is
adjourned. The case has been rescheduled for a HEARING to be held . . . on
12/09/19 at 1:30 [p.m.]."
Shortly before the December 9 hearing, defendant retained new counsel.
Approximately four days prior to the December 9 hearing, defendant's attorney
asked to adjourn the hearing or to appear by phone. The judge who was assigned
to try the case denied counsel's requests. Nonetheless, defendant's attorney
failed to appear as ordered or write to the court to explain his absence from the
December 9 hearing. The parties and plaintiff's counsel did appear for the
hearing. The judge announced that defendant's attorney "was instructed to be
here ready to go. Why he is not here, I don't know. He does not have leave of
the Superior Court to be absent, so we are proceeding as scheduled." Before
continuing with the hearing, however, the judge briefly recessed to allow
defendant to contact his attorney. The judge remarked, "[t]his has been
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scheduled for a significant period of time. This child[] is hanging in the
balance."
During the recess, defendant called his attorney. Defendant reported back
to the judge that his attorney asked him to seek a postponement of the hearing.
Defendant also stated his attorney "said that the paper [notice] doesn't indicate
that this is a trial hearing [but] I was . . . pretty alert that you announced this as
a trial hearing." The judge responded:
So, what's the court to do when I have an attorney who
is told he cannot appear by phone, who makes no
arrangements for alternative representation, . . . whose
office has represented to this . . . court that that attorney
told you to go find another attorney, despite . . . that I
don’t have one written document from that lawyer . . ..
other than an entry of appearance dated December 2,
2019?
Plaintiff's counsel offered to postpone the hearing on the condition that
plaintiff enjoy parenting time with Mark. He explained that plaintiff had not
enjoyed parenting time with Mark since "before Thanksgiving," even though she
"was supposed to have [Thanksgiving weekend], and then she was supposed to
have a week vacation time in December." Counsel further advised that
defendant "won't return the child." Defendant denied refusing to return Mark to
his mother's care, but said Mark had run away twice before and the school
contacted him because Mark "refused to go home." The judge concluded the
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parties' shared parenting arrangement had "gone off the rails," so he ordered
"[o]n a temporary basis only," that Mark be picked up from school by plaintiff .
The judge instructed that the child did "not have veto power," and "[i]f the child
attempts to run away, reach out to Dad, reach out to Dad's relatives. Dad, you
are ordered to work with the child and get the child back to Mom." Defendant
replied he had just been alerted by Mark's school that Mark was "refusing to go
back" to his mother's, "like he did last week." The judge remained steadfast,
ruling "Mom is going to pick the child up . . . . [and] the child is to be with Mom
until Friday. Dad is to have open and liberal reasonable contact via telephone,
Skype, iPhone, whatever . . . is . . . reasonable." The judge asked defendant if
he understood "this is nothing more than a temporary order to augment the
previous order," and that the parties' custody and parenting time issues would
be addressed upon their return to court that Friday (December 13, 2019).
Defendant confirmed he understood the judge's decision.
The parties and their respective counsel appeared, as ordered, on
December 13, at which time the judge learned Mark was not returned to
plaintiff's custody, notwithstanding the December 9 order. The trial began, and
with the court's permission and plaintiff's consent, defendant played a series of
videos he took on December 9 and 10, 2019, showing the child was brought to
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different locations to effectuate the judge's temporary custody order. As the
judge noted, the videos defendant introduced into evidence demonstrated Mark's
repeated refusals to leave his father's vehicle and return to his mother's care.
We need not outline the judge's findings for each video presented.
Instead, we note our review of this evidence gives us no reason to disturb his
findings. We highlight only a few.
One video from December 9, 2019 showed two State troopers approach
defendant's car to effectuate the transfer in custody ordered that day. One
trooper was heard reciting a portion of the December 9 order to confirm Mark
(eleven years old at the time) "has no veto power" and defendant was "to work
with the child so that he is returned to [plaintiff]." The judge found defendant
displayed "absolutely atrocious disrespectful" behavior in front of the troopers,
that defendant used "wishy-washy" language with Mark, rather than tell the
child he "should go with [his] mother" and "the child was smart enough and
perceptive enough" to "pick[] up on this." Further, the judge noted the video
showed the child "struck" defendant during the encounter, which behavior was
"accepted as somewhat acceptable" even though it was "absolutely
unacceptable." Also, during the failed custody exchange, the trooper told
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defendant that defendant "made no movement out of the car to assist[,]" "no
attempt to assist whatsoever" in the custody exchange.
The judge also found that videos from December 10, 2019 showed Mark's
maternal aunt trying to encourage Mark to leave his father's car and return to his
mother's care. The judge concluded defendant responded to the aunt in "an
absolutely inappropriate manner," and went "off the deep end in front of the
child" when the aunt referred to "the judge's ruling." Notably, defendant later
admitted on cross-examination that he did not punish Mark for refusing to go
with his mother on either December 9 or 10, 2019.
When the December 13 hearing concluded, the judge determined he
needed to craft an emergent custody and parenting time order. He explained the
"multiple videos . . . speak for themselves." The judge found "Dad [was]
ordered to work with the child and get the child back to Mom," yet the child had
not returned to his mother's custody. Also, the judge concluded defendant was
"unwilling to . . . allow parenting time," and was either "unwilling or unable to
be a . . . cooperative parent. He is either unwilling or unable to understand or
exercise appropriate decorum in front of his child. He is either unwilling or
unable to follow court orders to the letter." Acknowledging that the court might
"change its opinion and its findings as this matter fully vets," the judge stated,
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"I'm not willing to gamble with this child's safety and with this child's
wellbeing." Additionally, the judge remarked:
This is an [eleven]-year-old who seems to think he rules
the roost. It is clear to this court, for the purposes of
this hearing and this decision, that, when he doesn't like
things, he runs away, he goes to Dad. He doesn't like
to be disciplined, he doesn't want things happening, he
runs away.
....
That is why the court, on Monday, put in the order —
and I'm seeing from the video[s] that it was in vain —
that [defendant] is to endeavor to reunite the child with
Mom and follow the order. He has miserably failed in
that respect. The court has zero confidence in his either
ability or willingness to obey a court order.
....
[Defendant] is not to have any face-to-face parenting
time. [Defendant] may have, for periods not to exceed
[fifteen] minutes, two days a week, telephone contact,
must be supervised by [plaintiff] at all times for that
telephone contact. It will be between the hours of [six]
and [seven] on Monday and Thursday.
The hearing continued on January 31 and February 3, 2020. Despite the
several-week hiatus in the trial after December 13, plaintiff's counsel informed
the judge at the January 31 hearing that less than four hours before he appeared
in court, he received notice defendant had subpoenaed roughly fifteen to twenty
witnesses. Plaintiff's counsel objected to the fact the subpoenas were served
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mid-trial, arguing this was not to be a "trial [by] ambush" and if he had he been
given more notice, he "would have been able to reach out to these people, take
a deposition" in the "almost two months since we were here the last time."
Defendant's attorney did not deny issuing the subpoenas just prior to the January
31 hearing, but he asked the judge to enforce the subpoenas.
The judge addressed the dispute as follows:
It is the practice of this court in cases such as this [to
hear] whatever witness is here today [and is] . . . ready
to go.
And if there is an objection when a witness takes the
stand, the court will hear everybody. The fact of the
matter is if you have witnesses here today, we'll take
each witness one at a time, we'll find out if there's an
objection to that witness. We'll get a proffer what that
witness is going to testify to.
But today is the day. Everybody knew from the last
time we were here today was the day . . . . [W]e're not
holding up anything. We have a spillover for later on
this afternoon or next week, . . . but today is the day and
if the witnesses are not here then shame on whoever
sent out subpoenas within the [eleven]th hour.
But we're not . . . holding up anything . . . . we're just
going to proceed.
When defendant's counsel noted "none of the witnesses [he subpoenaed]
are here" and he wanted "to have the [Division] caseworkers here," but required
a protective order, the judge questioned, "Why am I hearing about this the first
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time ever at a quarter of 2:00 on the day that the court etched in st one over a
month ago was our return date?" Further the judge found a "witness would not
be necessitated simply to authenticate and testify as to the records unless or until
there's an objection." The judge also noted the Division had closed its
investigation of plaintiff after concluding allegations of abuse were "not
established." 3
The judge again expressed concern that Mark "has had his life hanging in
the balance" and "[i]t's not in the best interest of the child to have any further
delay in these actions." Accordingly, the judge repeated that if defendant's
"witnesses are not here today, they're not testifying," noting defendant "has been
engaged in this for well over a year, [fourteen] months since he filed this matter.
There has been significant delay . . . . Some of it has been attributed to the acts
or behavior of [defendant]."
As the hearing progressed, defendant's counsel alerted the judge to the
fact he had subpoenaed plaintiff's mother, and she was present in the courtroom.
Therefore, the judge permitted defendant's attorney to call her to the stand before
3
"An allegation shall be 'not established' if there is not a preponderance of the
evidence that a child is an abused or neglected child as defined in N.J.S.A. 9:6 -
8.21 but evidence indicates that the child was harmed or was placed at risk of
harm." N.J. Dep't of Child. & Fams. v. R.R., 454 N.J. Super. 37, 40 (App. Div.
2018) (quoting N.J.A.C. 3A:10-7.3(c)(3)).
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defendant's testimony concluded. During the maternal grandmother's testimony,
she denied disparaging defendant in front of Mark. She also denied plaintiff
abused Mark, but she admitted she saw plaintiff physically discipline Mark with
"a smack on the bottom when he would need it" or a "tap" on his face "when
he's gotten smart mouthed."
Upon the resumption of defendant's testimony, he acknowledged he was
aware that by December 18, 2019, the Division "closed [its] involvement with
[plaintiff]" after considering "all [defendant's] allegations and [Mark's]
allegations since approximately January of 2019." Yet, he conceded that as
recently as January 30, 2020, he called the State police to go to plaintiff's home
for a "wellbeing check" on Mark. Defendant further admitted on cross-
examination that he did not check with Mark's school, or email any of Mark's
teachers to see how the child was doing after he was placed in plaintiff's sole
custody. He also agreed with plaintiff's counsel that he would not have known
Mark's grades improved after the temporary custody order was entered, but for
plaintiff's counsel showing him Mark's grades from the first and second quarter
marking periods.
Plaintiff was the last witness to testify. She denied defendant's allegations
that she abused Mark but admitted she had, at times, disciplined the child by
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giving him "a little smack" "on his butt." She stated she did not leave a mark on
him when she did this and had not disciplined Mark in this manner since
November 2018. Additionally, plaintiff testified she had given Mark a "little
smack" on his face if he was "mouthing off" but never bruised him. She also
stated Mark's demeanor and grades improved after the judge temporarily placed
him in her sole custody.
When the hearing ended on February 14, the judge issued a comprehensive
oral opinion. In assessing the credibility of the parties and plaintiff's mother,
the judge initially noted plaintiff testified with "a high level of credibility"; the
same was true of plaintiff's mother. On the other hand, the judge stated, "I afford
[defendant] very little if no credibility throughout the entirety of his testimony."
The judge found defendant "demonstrated absolutely no self-awareness
throughout the entirety of his testimony," and that his responses to his attorney
appeared
to be rehearsed, as if he was reciting something that he
had memorized. He had a story. He was going to get
it out in the order he was going to get it out . . . .
regardless of whether it was responsive . . . even with
his own attorney.
Additionally, the judge found much of defendant's testimony was based
on "an absolute lack of personal knowledge. [Defendant] would have this court
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issue some incredibly stark orders that would affect the health, safety and
welfare of this child based on things that started off with his testi[fying], 'I heard,
I read. I was told.'" The judge noted that defendant's credibility was called into
question "by the evidence that he presented," and that his videos "were an eye-
opener." Further, the judge observed defendant:
bases everything on what this highly challenged,
disturbed, anxiety-ridden little boy has related to him
and this court . . . will not put this child through further
anxiety.
It would be of absolutely . . . detrimental effect to bring
this child in and subject the child to any form of
testimony or in-camera hearing. . . . [T]he court is
satisfied that this child has a problem with the truth.
There is sufficient evidence that . . . this child has
played one parent off against the other. But the court
also finds . . . that there is sufficient evidence that
[defendant] has actually coached this child as well.
....
[A]nd I direct everyone's attention to D-3 which was a
[fifty]-second video of the events as recorded by
[defendant] and edited by [defendant].
This was a [fifty]-second video where [defendant]
appears . . . to have pressed record once [Mark] was
talking about allegations of his mother and
grandmother hitting him.
And at one point [Mark] says [the abuse occurred]
"[the] other day," and [defendant] coaches him and
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instructs him and uses the term, "Last week." That's
chilling. We have a child with emotional issues,
anxiety and . . . there is no telling what that type of
coaching and redirecting of this child, what kind of
effect it has had. It raises the serious question how
much coaching . . . like that [occurred] on their way to
the doctor's office, the E.R.s, [the Division], the police
departments, et cetera.
The judge concluded defendant's parenting style was "feckless and limp"
in terms of "asserting his authority" over Mark, and defendant was "not in a
position to appropriately parent this child." Importantly, the judge also found
"there is no credible evidence to support that [plaintiff] committed any acts of
physical abuse on the child."
The judge concluded Mark was a "special needs" child with "significant
behavioral . . . and emotional issues" as evidenced by the testimony and videos
presented. Moreover, he determined that based on the evidence presented,
including Mark's school records, Mark "adjusted well" to being in his mother's
sole custody under the December 13 order, whereas "this fifty-fifty [schedule]
is not working. It's causing more stress and strain to the child." Accordingly,
the judge concluded the parties should continue sharing joint legal custody,
plaintiff should remain Mark's PPR, and defendant should enjoy parenting time
on alternating weekends from Saturdays at 6 p.m. to Sundays at 6 p.m.
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Before concluding the trial, the judge asked the parties to step out of the
courtroom to address "something with [defendant's counsel]." At that time, the
judge referred to the failure of defendant's counsel to appear at the December 9
hearing, contrary to the court's instructions. The judge stated the failure to
appear "was unacceptable," but also noted counsel was "a good attorney . . . .
held in very high esteem by this court and in other courts throughout the State."
The judge continued:
I wasn't going to address this before, but . . . one of the
sheriff's officers reported that [defendant], I don't know
if he was talking to you or your secretary [on December
9 but he] said the judge is - - I see his face getting red.
I was very upset.
Defendant's counsel responded, "You communicated that to me, Your
Honor," to which the judge replied, "it's in the past." The judge also stated
defendant's counsel "maintained a truly dignified and professional demeanor
throughout" the rest of the custody proceedings so the judge was "not going to
order any sanctions" because "[i]t's over now."
On appeal, defendant raises the following arguments:
I. [THE] TRIAL COURT ERRED IN FINDING THAT
THE APPELLANT'S PARENTING-TIME WITH THE
MINOR CHILD SHOULD BE SUSPENDED AS IT
WAS DETRIMENTAL TO THE BEST INTERESTS
OF THE MINOR CHILD.
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II. [THE] TRIAL COURT ERRED IN SUSPENDING
THE APPELLANT'S PARENTING-TIME WITH THE
MINOR CHILD PRIOR TO A FULL PLENARY
HEARING.
III. [THE] TRIAL COURT ERRED IN CONDUCTING A
PLENARY HEARING WITHOUT PROPER NOTICE
BEING GIVEN TO THE PARTIES.
IV. [THE] TRIAL COURT ABUSED ITS DISCRETION
BY DENYING THE APPELLANT THE ABILITY TO
CALL CERTAIN WITNESSES AND PRESENT
CERTAIN EVIDENCE AT THE PLENARY
HEARING.
V. [THE] TRIAL COURT ABUSED ITS DISCRETION
BY NOT CONDUCTING AN IN CAMERA
INTERVIEW OF THE MINOR CHILD.
VI. THE TRIAL COURT ERRED IN MAKING A
FINDING THAT APPELLANT HAD "COACHED"
THE MINOR CHILD.
VII. THE TRIAL COURT ERRED IN IMPOSING
RESTRICTIONS ON THE MINOR CHILD'S
PATERNAL GRANDPARENTS FROM HAVING
FACE-TO-FACE CONTACT WITH THE MINOR
CHILD.
VIII. THE TRIAL COURT ERRED BY FINDING THAT
THE [DIVISION] FINDING OF "NOT
ESTABLISHED" EQUATED TO A FINDING THAT
THERE WAS NO ABUSE OF THE MINOR CHILD
BY RESPONDENT.
IX. THE TRIAL COURT ERRED [IN] DENYING THE
REQUEST TO APPOINT A GUARDIAN-AD-LITEM
FOR THE MINOR CHILD.
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X. THE TRIAL COURT ERRED IN ALLOWING
INADMISSIBLE HEARSAY FROM AN UNKNOWN
SHERIFF'S OFFICER WHO EAVESDROPPED ON
THE APPELLANT AND HIS ATTORNEY'S
CONVERSATION. (Not Raised Below).
These arguments are unavailing.
Our review of a trial judge's fact-finding function is limited. Cesare v.
Cesare, 154 N.J. 394, 411 (1998). A judge's fact-finding is "binding on appeal
when supported by adequate, substantial, credible evidence." Id. at 411-12
(citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).
"Because of the family courts' special jurisdiction and expertise in family
matters, appellate courts should accord deference to family court factfinding."
Id. at 413. "Deference is especially appropriate 'when the evidence is largely
testimonial and involves questions of credibility.'" Id. at 412 (quoting In re
Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). This is so because the
judge has the opportunity to see and hear the witnesses as they testify, thereby
developing a "'feel of the case' that can never be realized by a review of the cold
record." N.J. Div. of Youth & Fam. Servs. v. G.M., 198 N.J. 382, 396 (2009)
(quoting D.Y.F.S. v. E.P., 196 N.J. 88, 104 (2008)).
Apropos to the instant matter, we also defer to the trial court when it bases
its findings on a review of documentary or video evidence. State v. S.S., 229
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N.J. 360, 381 (2017). We do so to for institutional reasons: to recognize the trial
court's "experience and expertise in fulfilling the role of factfinder"; to maintain
trial courts' "legitimacy"; and to avoid duplicating efforts without significantly
improving decisional accuracy. Id. at 380-81. A judge's purely legal decisions,
however, are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super.
190, 194 (App. Div. 2007) (citing Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)). Governed by these principles, we discern
no reason to second-guess the judge's factual or credibility findings and are
satisfied his legal conclusions are unassailable. We add the following
comments.
Although parents have a presumptive constitutional right to have a
relationship with their children, those rights at times must yield to the best
interests of the children. In re Guardianship of K.H.O., 161 N.J. 337, 347-48
(1999). The court has a parens patriae responsibility to consider the welfare of
the child in resolving custody and parenting time disputes. See Fawzy v. Fawzy,
199 N.J. 456, 474-75 (2009). Indeed, the primary concern of any Family Part
judge in a custody matter is to determine what will "protect[] the 'safety,
happiness, physical, mental and moral welfare of the child.'" Beck v. Beck, 86
N.J. 480, 497 (1981) (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)).
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Where the child's best interests have once been determined through trial or, as
here, by consent, the party seeking a modification of the prior
custody determination must show a change of circumstances warranting
modification. R.K. v. F.K., 437 N.J. Super. 58, 62 (App. Div. 2014); M.P. v.
S.P., 169 N.J. Super. 425, 431 (App. Div. 1979).
Regarding Points I, II, and VII, all of which relate to the December 13,
2019 order, we "ordinarily refuse to examine moot matters due to [a] reluctance
to render legal decisions in the abstract," but we may choose to rule on such
matters if "they are of substantial importance and are capable of repetition yet
evade review." In re J.I.S. Indus. Servs. Co. Landfill, 110 N.J. 101, 104 (1988).
Here, the custody issues implicated in December 13 order did not escape review,
because the judge re-examined the parties' custodial arrangement and replaced
the December 13 order with the February 14, 2020 order. The latter order now
is the only one governing the parties. Thus, any further review of the December
13 order would "have no practical effect on the existing controversy." Redd v.
Bowman, 223 N.J. 87, 104 (2015) (quoting Deutsche Bank Nat'l Trust Co. v.
Mitchell, 422 N.J. Super. 214, 221-22 (App. Div. 2011)).
Had the December 13 order survived the entry of the February 14, 2020
order, we still would not conclude the judge erred in suspending defendant's in-
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person contact with Mark and awarding plaintiff temporary sole physical
custody. That is because the judge properly considered testimony, videos,
defendant's failure to relinquish custody of Mark pursuant to court order, and
the factors set forth in N.J.S.A. 9:2-4 before he entered the emergent order. 4
The evidence the judge relied on amply supported his finding that: the parties
have "virtually no ability to agree, communicate, or cooperate in these [custody]
4
N.J.S.A. 9:2-4 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.
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matters;" defendant "set a very poor detrimental example for his child in front
of law enforcement" on December 9; and defendant "would rather videotape
than parent." We also do not fault the judge for concluding Mark needed
stability, and defendant could not meet this need because he was "unwilling or
unable to . . . exercise appropriate decorum in front of his child" and was "either
unwilling or unable to follow court orders to the letter."
Further, we perceive no basis to second-guess the judge's finding that
contact between Mark's paternal grandparents needed to be temporarily
suspended in December 2019 in tandem with the suspension he imposed on
defendant's parenting time. First, defendant points to no order or agreement
between the parties that awarded defendant's parents the right to have
independent contact with Mark. Second, the judge found defendant's parents
"just sat there [and] did nothing" to facilitate the parenting exchange ordered on
December 9. As the judge aptly noted, even if Mark's paternal grandparents did
not like plaintiff, they were obliged to "support the health, safety and welfare of
this child," and in any event, their contact with Mark was "secondary to
[defendant's]."
To the extent defendant contends the judge mistakenly referenced a report
from Dr. Barr when he issued his temporary custody ruling, we note the parties
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previously lodged no objection to the judge receiving and reviewing that report.
Also, the record demonstrates the judge made fleeting references to "Dr. Barr's
report," but he primarily relied on the content of defendant's videos when he
placed Mark in his mother's sole custody. In fact, the judge found the videos
demonstrated defendant could not or would not effectively coparent, and
"clearly thumbed his nose at the [December 9] court order." Additionally, the
judge clarified that whatever information was contained in Dr. Barr's report
"may not even be admissible evidence in the plenary [hearing]." Notably, the
judge did not refer to Dr. Barr's report again when he issued his final decision
on February 14. Under these circumstances, any brief consideration the judge
gave to Dr. Barr's report would constitute harmless error. R. 2:10-2.
Regarding Point III, defendant argues the trial court conducted the plenary
hearing without giving him proper notice. We disagree.
A parent has a constitutional right to due process when a change in the
custody of a child has been requested, including the right to adequate notice and
a fair opportunity to be heard. Div. of Youth & Fam. Servs. v. M.Y.J.P., 360
N.J. Super 426, 464-66 (App. Div. 2003). Here, we are satisfied defendant was
given both. In fact, the parties were forewarned by the trial court in June 2019
that they should be ready to try their case that August. Thereafter, they were
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afforded additional time to prepare for trial because their matter was
rescheduled. Additionally, the parties received notice in November 2019 that
they were to appear for a "hearing" on December 9, 2019. Further, contrary to
the argument defendant advances on appeal, he told the judge on December 9
that he was "pretty alert that you announced this as a trial hearing."
We also note that when defendant's counsel appeared on December 13 and
stated he was "not aware that today was a final hearing on this application," the
judge disagreed. The judge found defendant's attorney was instructed by the
court days prior to the December 9 hearing that his request for a postponement
or to appear by phone was denied and that he was to physically appear as
scheduled. Under these circumstances, we cannot conclude the plenary hearing
proceeded without proper notice to defendant.
Regarding Points V and IX, we are not persuaded the judge erred when he
declined to interview Mark or to appoint a guardian ad litem (GAL) for the child.
Rule 5:8-6 provides in pertinent part:
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.
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"[T]he 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." D.A. v. R.C., 438
N.J. Super. 431, 455-56 (App. Div. 2014). A judge's interview of a child is
discretionary, rather than mandatory, regardless of the age of the child. Pressler
& Verniero, Current N.J. Court Rules, cmt. on R. 5:8-6 (2022).
Here, the judge stated when the trial began that he would not interview
Mark. the judge explained:
This child does appear to have certain special needs,
and I am not going to subject that child to any additional
trauma that would be incurred by dragging the child
into . . . a courtroom, albeit in a private setting with a
judge, and just add to the trauma that this child may
have or is continuing to suffer.
The court is confident based on the testimony that . . . .
the court is going to have more than enough
information . . . . [F]or those reasons, the court is going
to decline to . . . interview[] this [eleven]-year-old
child.
Certainly the court is always subject to change its
position. But, I . . . would be hard pressed . . . to find
anything at this juncture overriding what this court is
already holding in the best interest of the child not to
cause further delay and trauma to the child by dragging
the child in here and . . . interviewing him.
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The judge reiterated these sentiments on January 31, 2020, after hearing
additional testimony from defendant about plaintiff's alleged abuse of Mark.
The judge stated, "I am not interviewing [Mark]. It is clear he has significant
issues and I'm not going to exacerbate those by putting him through the trauma
of having the court interview him." Based on our deferential standard of review,
and convinced the judge's factual findings are supported by competent, credible
evidence, we find no reason to disturb his decision not to interview Mark.
Similarly, we decline to conclude the judge erred in deciding not to
appoint a GAL for Mark. Rule 5:8B provides, in part, that in "cases in which
custody or parenting time/visitation is an issue, a [GAL] may be appointed by
court order to represent the best interests of the child . . . if the circumstances
warrant such an appointment." (Emphasis added). Thus, a trial court is not
bound to appoint a GAL simply because a party requests the appointment.
The role of a GAL is "to assist the court in its determination of the . . .
minor's best interest." Div. of Youth & Fam. Servs. v. Robert M., 347 N.J.
Super. 44, 70 (App. Div. 2002). That is to say, a GAL's
services are to the court on behalf of the child. The
GAL acts as an independent fact finder, investigator
and evaluator as to what furthers the best interests of
the child. The GAL submits a written report to the court
and is available to testify. If the purpose of the
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appointment is for independent investigation and fact
finding, then a GAL would be appointed.
[In re M.R., 135 N.J. 155, 173 (1994) (quoting Pressler
& Verniero, cmt. on R. 5:8B).]
But a GAL's report and recommendations "may never serve as a substitute for
the court's exercise of its parens patriae obligation" and a "trial judge must never
'cede . . . responsibility and authority[,]' or 'abdicate its decision making role to
an expert.'" Milne v. Goldenberg, 428 N.J. Super. 184, 202 (App. Div. 2012)
(quoting P.T. v. M.S., 325 N.J. Super. 193, 216 (App. Div. 1999)).
Here, defendant ensured that throughout the course of 2019, law
enforcement, the Division, and Mark's pediatrician followed up on or
investigated his multiple allegations that plaintiff abused Mark. Also, counsel
for both parties were given access to the Division's records months before the
trial occurred and before the Division closed its investigation upon finding the
allegations of abuse were "not established." Given the extent to which Mark's
circumstances were scrutinized, we are not persuaded the judge abused his
discretion in declining to appoint a GAL for Mark.
Regarding Point IV, defendant argues the judge erred by denying him the
ability to call certain witnesses and present certain evidence. Again, we
disagree.
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We review a Family Part judge's evidentiary rulings for an abuse
of discretion. N.J. Div. of Child Prot. & Permanency v. N.T., 445 N.J. Super.
478, 492 (App. Div. 2016). Thus, we reverse discretionary determinations, as
with all rulings on the admissibility of evidence, only "when the trial judge's
ruling was 'so wide of the mark that a manifest denial of justice resulted.'" N.J.
Div. of Youth & Fam. Servs. v. M.G., 427 N.J. Super. 154, 172 (App. Div.
2012) (quoting State v. Carter, 91 N.J. 86, 106 (1982)).
Defendant does not deny that he waited until the trial was due to
commence before he sought access to certain records. Nor does he deny that he
waited until mid-trial to served subpoenas on multiple witnesses, without notice
to plaintiff, despite having several weeks between hearing dates to issue the
subpoenas. Despite these dilatory tactics, and over plaintiff's objection, the
judge permitted defendant to call any witnesses who were in court on January
31 who had been subpoenaed. One such witness was Mark's maternal
grandmother. Given the judge's concern that further delays in the trial would
negatively impact Mark, we are not persuaded the judge erred in precluding
additional witnesses from testifying at a later date.
Additionally, we are satisfied the judge did not abuse his discretion in
denying defendant's belated request for the production of certain records, such
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as confidential Division's records. As discussed, defendant's prior counsel had
reviewed records from the Division months before the trial commenced. Also,
it appears defendant's trial counsel failed to seek access to such records prior to
trial, even though the Division's investigation did not conclude until December
2019. Further, because the judge expressed concern that further delays would
negatively impact Mark, and defendant offered no logical reason for waiting
until the trial had commenced to seek this evidence, we see no reason to upset
the judge's evidentiary rulings.
We need not extensively address defendant's arguments under Points VI
and VIII. Suffice it to say defendant's contentions the judge erred in finding he
coached the minor child, or that the judge mistakenly equated a "not established"
finding by the Division to mean plaintiff did not abuse Mark, are belied by the
record and devoid of merit. R. 2:11-3(e)(1)(E).
Finally, regarding Point X, defendant argues the judge mistakenly
entertained feedback from a sheriff's officer about a phone conversation
defendant had on December 9 while outside the judge's courtroom. During that
conversation, defendant apparently mentioned the judge was upset, and the
officer related that comment back to the judge. While the judge should not have
considered such extraneous information, defendant points to nothing in the
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record to support his contention that this lone remark impacted the judge's
February 14 decision. Moreover, the record reflects the judge found defendant's
attorney intended "no disrespect" when he failed to appear for the December 9
hearing, that defendant's attorney enjoyed "a high level of respect" in his
profession and had conducted himself "with the exception of that day with the
utmost respect towards the court." Also, the judge stated counsel had
"maintained a truly dignified and professional demeanor throughout." Further,
the judge accepted counsel's apology for failing to appear on December 9 and
concluded no sanctions should be imposed against defendant's attorney because
"it's in the past." Considering these facts, we decline to conclude, as defendant
urges, that the sheriff's officer's comments were "highly prejudicial" to
defendant.
In sum, we discern no error in the custody and parenting time
determinations made by the judge to warrant our intervention, and we affirm the
February 14, 2020 order. To the extent we have not addressed defendant's
remaining arguments, we are convinced they lack sufficient merit to warrant
discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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