I.O. VS. M.C. (FD-20-1488-05, UNION 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NOT FOR PUBLICATION WITHOUT THE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-1022-17T4
I.O.,
Plaintiff-Appellant,
v.
M.C.,
Defendant-Respondent.
____________________________
Submitted September 13, 2018 – Decided November 21, 2018
Before Judges Accurso and Vernoia.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Union County, Docket
No. FD-20-1488-05.
Ziegler, Zemsky & Resnick, attorneys for appellant
(Steven M. Resnick, of counsel and on the briefs).
M.C., respondent pro se.
PER CURIAM
Plaintiff I.O., the father of a fourteen-year-old son, M.O. (Mark),1 he
shares with defendant M.C., appeals from Family Part orders granting
defendant's motion to modify a March 17, 2016 parenting time order and
directing that the parties develop a schedule for unsupervised parenting time by
defendant.2 Because we conclude the court did not abuse its discretion by
determining there were changed circumstances supporting defendant's request
for a modification of the March 17, 2016 order, and the evidence supports the
court's determination it is in Mark's best interests to have unsupervised parenting
time with defendant, we affirm.
I.
Plaintiff and defendant dated prior to Mark's birth in 2003. Following
Mark's birth, the parties engaged in ongoing and contentious litigation over
1
We employ initials and pseudonyms for clarity and to protect the privacy of
the parties.
2
Plaintiff appeals from the following orders: a September 15, 2017 order
granting defendant's motion to modify a March 17, 2016 order, which required
that her parenting time be supervised, and directing that the parties develop a
parenting time schedule that includes unsupervised parenting time; an October
12, 2017 order directing unsupervised parenting time for defendant; an October
13, 2017 order modifying the arrangements for defendant's unsupervised
parenting time; an October 16, 2017 order denying plaintiff's motion for a stay
of the October 13, 2017 order; and an October 27, 2017 order denying plaintiff's
motion for an order requiring that defendant's parenting time be supervised.
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custody and parenting time issues. In I.O. v. M.C., No. A-5349-12 (App. Div.
Sept. 2, 2014) (slip op. at 2-11, 21), we summarized their litigation history and
affirmed a June 28, 2013 Family Part order transferring legal and residential
custody of Mark from defendant to plaintiff and temporarily restricting
defendant to one hour of supervised parenting time per week. We relied in part
on the trial court's findings that defendant "was unwilling, and perhaps
psychologically incapable, of engaging in co-parenting in any meaningful
fashion," id. at 17, and that her ongoing refusal to comply with court orders
"demonstrated a refusal to co-parent and agree on matters related to Mark," id.
at 11.
We also noted the June 28, 2013 Family Part order required that defendant
undergo a psychological evaluation for the purpose of "establish[ing] 'a
comprehensive parenting time plan.'" Id. at 20. We determined that provision
of the order was interlocutory and therefore not before us, but noted the trial
court "was clearly hoping to expand [defendant's] parenting time in the future"
and "[d]oing so should be done on a priority basis, assuming of course,
appropriate cooperation from" defendant. Ibid.
Defendant subsequently underwent a psychiatric evaluation. In his report,
the psychiatrist opined that defendant could safely parent Mark without
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supervision and recommended reinstatement of unsupervised parenting time ,
subject to two caveats: defendant must demonstrate an ability to communicate
with plaintiff verbally and electronically in a civil manner, and she must not
undermine plaintiff's relationship with Mark.
In March 2015, the court considered the psychiatrist's report, the parenting
time supervisor's testimony supporting unsupervised parenting time for
defendant, and statements made by then eleven-year-old Mark during an in
camera interview of the child. The court entered a March 17, 2015 order
granting defendant unsupervised parenting time conditioned on the requiremen ts
that she communicate with plaintiff concerning all issues related to Mark and
not discuss the case with Mark, undermine plaintiff's parental authority or
remove Mark from New Jersey without plaintiff's express written authorization.
The order provided that if defendant violated any of its terms , supervised
parenting time would be immediately reinstated.
In May 2015, the court entered an order expanding defendant's parenting
time to include overnight visits. The court's order continued the conditions
imposed in the March 17, 2015 order, including the prohibition against
defendant removing Mark from the state without plaintiff's written consent.
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As the result of letters sent to the court by the parties concerning parenting
time issues, the court conducted a hearing on December 10, 2015. The court
determined defendant took Mark on a weekend trip to Virginia without
plaintiff's consent in violation of the March 17, 2015 and May 2015 orders, and
her violation of the orders was not in Mark's best interests. The court found
defendant's violation of the orders and refusal to communicate directly with
plaintiff concerning Mark constituted a substantial change in circumstances
warranting modification of defendant's parenting time. The court entered a
December 10, 2015 order eliminating defendant's overnight parenting time, but
permitting continued unsupervised parenting time subject to specified
conditions, including a prohibition against removing Mark from the state
without plaintiff's written consent.
On March 17, 2016, the court conducted a hearing on defendant's motion
for an order compelling Mark's use of both her and plaintiff's surnames,
prohibiting plaintiff from recording Mark and plaintiff's telephone
conversations, modifying the parenting time schedule and providing make-up
parenting time. The court denied defendant's motion.
The court also heard argument on plaintiff's cross-motion for
reinstatement of supervised parenting time. The court found defendant violated
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the prior orders by failing to communicate directly with plaintiff regarding
Mark, continuously calling the Division of Child Protection and Permanency
instead of communicating with plaintiff, and by involving Mark in matters that
should be addressed by defendant and plaintiff. The court found defendant's
actions caused Mark harm and that she could not be trusted to have unsupervised
parenting time.
The court entered a March 17, 2016 order directing that defendant's
parenting time be supervised and limited to four hours per week. The court
ordered that if the parties were unable to agree on a supervisor, Resolve
Community Counseling Center (Resolve) would supervise defendant's parenting
time. The parties did not agree on a supervisor, and defendant's parenting time
was thereafter supervised at Resolve. The court denied defendant's motion for
reconsideration.
On March 23, 2017, defendant filed a pro se motion seeking "clarification
on an end date for supervised visitation" and claiming that the orders limiting
her parenting time and requiring that it be supervised were punitive. Defendant
requested an order reinstating her "parenting time, unsupervised or with a family
member to supervise." Defendant also asserted that Mark "is [thirteen] years
old and can determine when he wants to visit with his mother and family" and
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that Mark "states [plaintiff] does not allow him to call [defendant] and
discourages him from contacting" her.
During the July 13, 2017 oral argument on the motion, the court asked
about Mark's preferences concerning his mother's supervised parenting time,
and plaintiff agreed the court could interview Mark. During the court's
subsequent in camera interview of the child, Mark stated he is thirteen years old,
entering the eighth grade and wants to spend more time with his mother,
including on alternate weekends and during vacations. He also indicated that
the presence of the supervisor during defendant's parenting time is annoying,
uncomfortable and unnecessary. He feels comfortable and safe with his mother
and wants unsupervised parenting time with her.
Over two days in August 2017, the court held a plenary hearing on
defendant's application for a modification of the May 17, 2016 parenting time
order. The court found there were changed circumstances requiring a plenary
hearing as to whether it was in Mark's best interests to modify the parenting time
order. More particularly, the court determined the changed circumstances
included the fact that Mark was one-and-a-half years older than when the March
17, 2016 parenting time order was entered, and Mark "made it very clear" during
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the court's interview that he preferred unsupervised parenting time with
defendant.
During the plenary hearing, defendant testified and presented the
testimony of a marriage and family therapist from Resolve who supervised some
of defendant's parenting time. Plaintiff also testified at the hearing.
Following the hearing, the court issued a detailed written opinion finding
plaintiff and defendant had a limited ability to communicate and cooperate in
matters related to Mark and that both parties contributed to the problem. The
court noted the prior history of the litigation between the parties, but determined
that plaintiff and defendant are fit parents who care deeply for Mark, who is
thriving socially and in school. The court further found that Mark is entering
the eighth grade and is of an age where "his preference in terms of moving
forward with parenting time should be a significant factor in the [c]ourt 's
determination." The court found Mark felt safe with plaintiff and defendant,
uncomfortable with continued supervised visitation and desirous of spending
unsupervised overnight parenting time. The court determined Mark was no
longer the same child who had been interviewed by the judges who issued prior
parenting time orders and was now "emotionally and logically mature."
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The court further determined that, "with appropriate procedures put into
place, [there] is no longer a risk . . . that [Mark's] or either parent's safety is now,
or ever has been, in jeopardy." The court found defendant raised Mark for the
first eight-and-a-half years of his life and that, during the following five years,
her time with the child was limited because she could not communicate with
plaintiff and follow court orders. The court determined that "[n]one of her
behaviors have ever demonstrated that she is unfit or would ever abuse or
neglect" Mark.
The court concluded it was in Mark's best interests for defendant's
supervised parenting time to be gradually changed from temporary supervised
parenting time by a designated supervisor, and then family and friends, to
unsupervised parenting time and unsupervised overnight parenting time. The
court entered a September 15, 2017 order directing that the parties agree to
develop a communication protocol and progressive parenting time schedule.
The court also directed that the parties should present any dispute to the court
concerning the parenting time schedule and communication plan.
On October 12, 2017, the court issued an order which in pertinent part
granted defendant unsupervised overnight parenting time on alternate weekends.
The order limited defendant's travel with Mark to New Jersey, New York,
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Connecticut and Pennsylvania, permitted Mark's communication with both
parents at any time, and prohibited plaintiff and defendant from making
disparaging remarks about the other or discussing any aspect of the litigation
with Mark. The court also entered an October 13, 2017 order specifying the
location where defendant is required to pick up Mark for her parenting time.
Plaintiff's motion for a stay of the October 13 order was denied on October
16, 2017. Plaintiff filed an emergent application requesting that the court
conduct an in camera interview with Mark, direct an updated psychological
evaluation of defendant and require supervision of her parenting time. The court
entered an October 27, 2017 order denying the emergent application. Plaintiff
appealed the court's September 15 and October 12, 13, 16 and 27, 2017 orders.
II.
On appeal, plaintiff argues the court erred by finding there were changed
circumstances permitting the court's consideration of defendant's motion to
modify the March 17, 2016 order, which allowed her only four hours of
supervised parenting time each week. Plaintiff further argues that even if
defendant demonstrated changed circumstances requiring a plenary hearing on
defendant's request for modification of the March 17, 2016 order, she failed to
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prove changed circumstances supporting the court's order granting her
unsupervised overnight parenting time.
"Because of the family courts' special jurisdiction and expertise in family
matters, appellate courts should accord deference to family court factfinding,"
Cesare v. Cesare, 154 N.J. 394, 413 (1998), "provided [it is] supported by
adequate, substantial, and credible evidence in the record," D.A. v. R.C., 438
N.J. Super. 431, 451 (App. Div. 2014). A court's legal determinations are not
entitled to any special deference. In re Forfeiture of Personal Weapons of F.M.,
225 N.J. 487, 506 (2016). We review questions of law de novo. Ibid.
In custody determinations, "the primary and overarching consideration is
the best interest of the child." Kinsella v. Kinsella, 150 N.J. 276, 317 (1997).
This inquiry focuses on the "'safety, happiness, physical, mental and moral
welfare' of the children." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div.
2007) (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)).
A party seeking a modification of a parenting time order "must meet the
burden of showing changed circumstances and that the [prior order] is now not
in the best interests of a child." Abouzahr v. Matera-Abouzahr, 361 N.J. Super.
135, 152 (App. Div. 2003); see also Lepis v. Lepis, 83 N.J. 139, 157 (1980).
"[T]he burden is on the party seeking modification to show that, 'due to a
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substantial change in circumstances from the time that the current . . .
arrangement was established, the best interests of the child would be better
served by'" the requested modification. Chen v. Heller, 334 N.J. Super. 361,
380 (App. Div. 2000) (quoting Voit v. Voit, 317 N.J. Super. 103, 121 (Ch. Div.
1998)).
Family Part judges "are regularly called upon to make exceedingly
difficult and delicate decisions as to the best interest of children, and we are
obliged to give deference to both their findings and the exercise of their sound
discretion." Abouzahr, 361 N.J. Super. at 157. A trial court misuses its
discretion by making a decision without a rational basis, inexplicably departing
from established policies, or resting its decision on an impermissible basis. US
Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 467 (2012).
Plaintiff argues the court abused its discretion by finding defendant mad e
a prima facie showing of changed circumstances warranting a hearing as to
whether the requested modification of the March 17, 2016 parenting time order
was in Mark's best interests. He contends defendant relied solely on the passage
of time since the entry of the order and failed to demonstrate any change in the
circumstances—her consistent failure to abide by prior parenting orders—which
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provided the basis for the prior order's supervised parenting time requirement.
We disagree.
Based on our review of the record, we are convinced the court did not
abuse its discretion by finding defendant demonstrated sufficient changed
circumstances warranting consideration of defendant's motion to modify the
March 17, 2016 parenting time order. When the order was entered, the court did
not consider Mark's preferences concerning defendant's parenting time. Sixteen
months later, at the July 13, 2017 oral argument on defendant's modification
motion, however, plaintiff consented to a court interview of Mark to determine
his parenting time preferences.
Based on the interview, the court determined Mark "is a mature and
intelligent [teenager] who is able to articulate his preference . . . in a positive
and logical fashion" and is of an "age [where] his preference in terms of moving
forward with parenting time should be a significant factor in the [c]ourt 's
determination" of defendant's request for a modification of parenting time. See
N.J.S.A. 9:2-4(c) (requiring that, in making a custody determination, the court
shall consider "the preference of the child when of sufficient age and capacity
to reason so as to form an intelligent decision"); see also Palermo v. Palermo,
164 N.J. Super. 492, 499 (App. Div. 1978) (stating that "the 'opinions' or
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expressed preference of the child to live with [one parent over the other are] not
controlling[, b]ut it is one of the factors which may properly influence the trial
judge's decision"). The court further found that Mark feels safe with defendant
and perceives the supervised parenting time imposed pursuant to the March 17,
2016 order as uncomfortable and unnecessary. Mark's clearly stated preference
is for unsupervised parenting time with defendant at her home in the
neighborhood where he resided for the first eight-and-a-half years of his life.
The court's determination that there were changed circumstances is
supported by its finding that the Mark it interviewed "is not the child that he was
when interviewed" by the judges who heard prior motions in the case. In other
words, the court determined that the change in Mark's level of maturity, his
perception that the supervised visitation was unnecessary, and his clearly and
logically articulated preference for unsupervised parenting time with his mother
constituted changed circumstances directly related to Mark's best interests. We
are convinced the record supports the court's determination and are satisfied the
court did not abuse its discretion by finding the changed circumstances
warranted consideration of defendant's modification motion.
Plaintiff also argues the court erred in finding, after the plenary hearing,
that it was in Mark's best interests for the court to order a gradual transition to
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unsupervised parenting time for defendant. We find the argument lacks
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
We add only that we have reviewed the record, and the court's detailed findings
of fact are supported by substantial credible evidence. Moreover, its
determination that Mark's best interests are served by enjoying unsupervised
parenting time with defendant rests on a rational basis and, therefore, does not
constitute an abuse of discretion. See US Bank Nat. Ass'n, 209 N.J. at 467; see
also P.T. v. M.S., 325 N.J. Super. 193, 215 (App. Div. 1999) (quoting
Giangeruso v. Giangeruso, 310 N.J. Super. 476, 479 (Ch. Div. 1997)) (finding
that in issues of custody and visitation, "[t]he question is always what is in the
best interests of the children").
Affirmed.
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