LYNN D. FREDERICK v. DALE FRESE

Annotate this Case

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1364-05T11364-05T1

LYNN D. FREDERICK,

Plaintiff-Respondent,

v.

DALE FRESE,

Defendant-Appellant.

 

Submitted August 16, 2006 - Decided August 21, 2006

Before Judges Kestin and Winkelstein.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, FM-08-207-96.

Holston, MacDonald, Uzdavinis, Eastlack, Ziegler & Lodge, attorneys for appellant (Teri S. Lodge, on the brief).

Lynn D. Frederick, respondent pro se.

PER CURIAM

Defendant appeals from a September 30, 2005 order that denied his request for unsupervised parenting time with the parties' son, Michael Frese, born on July 15, 1994. We affirm.

Plaintiff and defendant were married on April 21, 1990; a final judgment of divorce was entered on April 16, 1996, which, among other things, awarded sole custody of Michael to plaintiff, and provided defendant with supervised visitation. The reason for the supervised visitation was defendant's conviction on January 29, 1996 for sexual assault on a four-year-old girl.

Since defendant's release from prison on January 6, 1998, he has participated in supervised parenting time. As of January 4, 2000, his visitation with his son has been supervised by plaintiff's mother or sister.

Defendant moved for unsupervised visitation in May 2005. Along with his motion, he submitted a risk assessment prepared by Andrew P. Musetto, Ph.D., a psychologist. The risk assessment noted, in part:

Mr. Frese was incarcerated for 20 months (he was sentenced for seven years) after being arrested for one count of sexual assault and one count of endangering the welfare of a child. Since being released from prison in 1998, he has had no additional criminal charges and none before the index crime. Mr. Frese, furthermore, has been having supervised visitation with his ten-year-old son, Michael, since leaving prison in early 1998, and there have been no problems associated with the visits. Mr. Frese acknowledges that the incident with the eight-year-old girl[] for which he went to prison was planned, but he states that it occurred during a two- or three-week period in which he was under a lot of stress and therefore not himself. He disclaims any sexual interest in children outside of that two or three week period and no interest whatsoever or at any time in young boys. Nor does he have any sexual interest in children, male or female, at this time. Feedback from his therapy group for sexual offenders indicates a positive response to treatment. Psychological testing, although he responded defensively, falls within normal limits. In my opinion, therefore, Mr. Frese represents a low risk of acting inappropriately (sexually or otherwise) with Michael, the risk categories being low, moderate, or high (no one can be said to have absolutely no risk whatsoever; risk assessments deal in probabilities, not absolutes).

In opposition to defendant's motion for unsupervised visitation, plaintiff certified to the following:

8. The mere fact that the defendant has had supervised visits with our son for seven years without incident does not provide me any comfort either. Of course the defendant is not going to engage in sexual behavior with our son in the presence of a supervisor. This does not mean to suggest that he does not engage in unusual and sometimes inappropriate behavior with our son during his parenting time. The defendant is fixated on taking our son to the bathroom in public places. He often asks our son whether he needs to go to the bathroom. On several occasions, he has snuck our son off to the bathroom without first telling the supervisor. He did this to me one time when we were at the movies. This has also occurred in the presence of my sister and my mother when they act as supervisors. Our son is eleven years old; he does not need an escort to the bathroom. Additionally, within the past year, my sister told me that the defendant actually tried to get our son to take a nap with him in his single bed. My sister fortunately diverted the situation and no such nap ever took place.

9. This past Sunday, the defendant took our son to the shore. My sister and her friend supervised the trip. After their day at the beach, I learned that the defendant took our son into the men's bathhouse and took a shower with him. My son told me that both he and the defendant were naked, and that he played in the shower. My sister told me that she and her friend waited outside the men's bathhouse for an additional 20 minutes for the defendant and our son to come back out of the men's bathhouse. The defendant obviously does not seem to think that escorting our son to the bathroom, taking naps with him, or showering with our son is inappropriate. This is concerning. He obviously does not have the ability to distinguish between appropriate and inappropriate behavior with our son.

10. I disagree with defendant's assertion that now that our son is eleven years old he is old enough to report any problems to me. First and foremost, our son is not a typical eleven year old. He was born with one less chromosome and therefore has special needs. He has difficulty with gross and fine motor activities, Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder.

After reviewing the parties' submissions and hearing argument, Judge McMaster made the following findings:

But, unfortunately, some acts result in consequences that last for many, many years and cannot be undone for those consequences. And, unfortunately, that, I believe, is the situation we have here. You're stuck with the consequences of your act, even if it was a terrible moment and a terrible lapse of judgment, there's consequences, and you have to somehow learn to deal with the consequences.

I hope some day there can be a relationship, but while I'm telling you -- while I understand his argument, I also understand what Ms. Cockerill has said, that perhaps there's been no further problems because we've had supervised visitation. I don't know that.

Certainly, he can say, no way, that's not true. But sitting here and balancing both arguments and having a special needs child, I -- I, myself, do not want to take that chance for the child and that's how I have balanced it in my mind. I know it's very difficult for Mr. Frese to accept, but he's going to have to accept it as -- as my decision today and I wish him luck in the future.

In its memorializing order denying unsupervised visitation, the court emphasized that the parties' son was a "special needs child whose best interest deserved the maximum protection of this Court."

We have reviewed the record and have considered defendant's arguments in light of the applicable law. We conclude that they are without merit and do not warrant extensive discussion. R. 2:11-3(e)(1)(A)&(E). We add only the following.

To modify an order regarding custody or visitation, a party must show changed circumstances and that the order is no longer in the child's best interests. Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div.), certif. denied, 178 N.J. 34 (2003); Todd v. Sheridan, 268 N.J. Super. 387, 398 (App. Div. 1993); Mastropole v. Mastropole, 181 N.J. Super. 130, 137 (App. Div. 1981). The changed circumstances defendant argues here are that he has experienced no problems with visitation since he was released from prison in 1998. Nevertheless, in light of defendant's prior conviction and Michael's special needs, the Family Part judge was not satisfied that unsupervised visitation was in the child's best interest. We find no basis to disturb that decision.

"The proper resolution of [a dispute in the Family Part] depends on the particular factual context in which it arises and necessarily requires an appreciation of the positions occupied by the litigants and a sensitivity to the needs of the parties and their children." O'Donnell v. Singleton, 384 N.J. Super. 141, 144 (App. Div. 2006). Here, Judge McMaster properly exercised her discretion; while she was sensitive to defendant's concerns, the judge correctly considered the child's best interests to be paramount. We accord deference to the Family Part judge's fact-finding. See Cesare v. Cesare, 154 N.J. 394, 413 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). In so doing, we affirm substantially for the reasons expressed by Judge McMaster in her oral decision and as amplified by her order.

Affirmed.

 

According to defendant's judgment of conviction, the victim was four years old.

(continued)

(continued)

7

A-1364-05T1

 

August 21, 2006


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