M.J.G. v. M.G.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

M.J.G.,

Plaintiff-Respondent,

v.

M.G.,

Defendant-Appellant.

March 7, 2014

Argued January 15, 2014 Decided

Before Judges Lihotz and Maven.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-0020-06.

Harvey H. Rothman argued the cause for appellant (Gerald Poss, P.A., attorneys; Mr. Rothman, on the brief).

Leanne Pike Treese argued the cause for respondent (Patricia Slane Voorhees and Ms. Treese, attorneys; Ms. Treese, on the brief).

PER CURIAM

In this high-conflict custody matter, defendant M.G. (Mother) appeals from the January 10, 2013 order of the Family Part transferring custody of the parties' then fifteen-year-old child to plaintiff M.J.G. (Father). Mother contends the court decision was erroneous because the judge failed to consider the opinion of the child's therapist, and the child's preference. For the reasons that follow, we conclude these contention lack merit and affirm.

The parties were married August 26, 1995. One child, Barbara,1 was born of the marriage in 1997. The parties divorced on May 29, 2007. The parties have filed numerous acrimonious motions regarding custody and parenting time both before and after their divorce. The root of their conflict appears to be Father's on-going relationship with Eileen, Mother's former friend and Barbara's godmother.

We briefly recount the litigious history to give context to the matter under review. In 2005, as part of the divorce proceedings, the court appointed Robert Rosenbaum, Ed.D., to prepare a best interest custody evaluation. In his 2006 report, Dr. Rosenbaum noted "the parties were involved in a high conflict child custody/parenting time dispute and there were limited and ineffective communications between the parties." The court ordered joint legal custody, designated Mother as the parent of primary residence, and granted Father parenting time.

In October 2008, the court denied the parties' respective requests to modify the parenting time schedule, and denied Father's request to permit Eileen to be present during his parenting time with Barbara. The court ordered the parties to a therapist, Dr. Joanne E. Booth, to address "whether it is in [Barbara's] best interest to develop a plan to allow her to interact with Eileen."

In December 2009, the court denied, without prejudice, Father's request for Barbara's unrestricted contact with Eileen, and Mother's cross-motion requesting the court to interview Barbara with regard to Eileen's participation in Father's parenting time. The court determined Dr. Booth should address the appropriate manner in which Barbara would have contact with Eileen, and directed Dr. Booth to submit a report to the court within three months for the court's further consideration of the motions. In March 2010, following correspondence from Dr. Booth and oral argument, the court issued a supplemental order establishing a summer parenting time schedule, and permitting limited contact between Barbara and Eileen, during Father's parenting time. These visits were to be monitored by Dr. Booth.

On November 29, 2010, Mother filed an emergency application seeking, among other things, to terminate overnight visitation and contact with Eileen, and sole custody.2 In December 2010, Father filed an emergency application seeking to hold Mother in contempt for interfering with court-ordered visitation. The court considered both matters and, in January 2011, denied Mother's request for sole custody, and ordered the parties to comply with the prior visitation order, except that Eileen was not to be present during any of Barbara's visits with Father. The parties were ordered to find a therapist for Barbara. The court also ordered Dr. Rosenbaum to conduct a "focused" custody evaluation "to determine the nature of [Barbara's] relationship with her father, to determine possible estrangement issues by her mother, and to make recommendations regarding how to address issues of alienation, if found."

Following his evaluation, Dr. Rosenbaum submitted a report that concluded that due to Mother's influence, Barbara had become estranged and alienated from Father, and she "behave[d] in ways similar to those of alienated children."3 In the end, Dr. Rosenbaum recommended that mother become more positive and supportive of Father's parenting time or risk further alienation, distress, and long-term psychological harm to Barbara. He also recommended that Mother stop empowering Barbara by leaving her in control of the visitation decisions. In that regard, he suggested a strict parenting schedule with sanctions on Mother if she were not to comply. Dr. Rosenbaum suggested increasing Father's parenting time to foster his relationship with Barbara. Finally, he recommended the parties begin mandated parenting therapy to address underlying problems, differences in parenting styles, and communication difficulties.

The court received the report in August 2011, and held a plenary hearing in January 2012. The February 2012 order incorporated Dr. Rosenbaum's findings and recommendations, and ordered Barbara to continue counseling with Beverly Arneth Hodsden, MA, LPC, LCADC.

On April 4, 2012, Hodsden reported on Barbara's progress in therapy, indicating that she was doing well in school both academically and socially, but she was affected by the deteriorating relationship between Mother and Father. Hodsden reported that Barbara's progress "was derailed when her parents reinitiated or escalated court action against each other." Hodsden "strongly recommended" that the court appoint a GAL to "represent [Barbara's] interests" in light of her parents' inability to "rationally discuss issues regarding [Barbara]."

In May 2012, the court followed Hodsden's suggestion and appointed Jennifer Weisberg Millner, Esquire, as GAL, pursuant to Rule 5:8B, to prepare a report addressing the parental relationship and the best interest of the child, including recommendations on custody and parenting issues. In the course of her duties, Millner interviewed the parents, Barbara, and Eileen. She also reviewed numerous court documents including prior motions, orders, court ordered evaluations, and court correspondence from therapists, the parties, Eileen and Barbara. Millner reviewed a recording of the judge's prior in camera interview of Barbara. Millner's efforts to speak with Hodsden were unsuccessful.

The court conducted a two-day plenary hearing on November 7 and December 18, 2012, during which the judge heard testimony from Millner and the parties. The judge rendered an oral opinion on January 10, 2013, followed by an order on January 11, 2013, awarding Father residential custody of Barbara.

We have carefully considered Mother's arguments in light of the record and applicable law. We conclude that her contentions are without merit. We affirm substantially for the reasons expressed by Judge DeBello in his thoughtful and comprehensive oral opinion on January 10, 2013. R. 2:11-3(e)(1)(A). We add the following brief comments.

We begin by stating well-known principles that inform our review. "Generally, the special jurisdiction and expertise of the family court requires that we defer to factual determinations if they are supported by adequate, substantial, and credible evidence in the record." Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012). This court owes "particular deference" to the family courts because of their "special jurisdiction and expertise in family matters." Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Such deference will be "disturbed only upon a showing that the findings are 'manifestly unsupported by or inconsistent with the competent, relevant[,] and reasonably credible evidence' to ensure there is no denial of justice." Ibid. (quoting Platt v. Platt, 384 N.J. Super. 418, 425 (App. Div. 2006)).

This court, however, will not defer to a family court's decision where the court abused its discretion. See, e.g., State ex rel. J.A., 195 N.J. 324, 340 (2008). "An abuse of discretion 'arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Milne, supra, 428 N.J. Super. at 197 (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)) (internal quotation marks omitted). The Family Part judge's legal decisions are subject to this court's plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007).

"[B]oth parents have a fundamental right to the care and custody of their children," and neither parent has a stronger right than the other. Sacharow v. Sacharow, 177 N.J. 62, 79 (2003). However, when adversarial parents submit their custody issue to the court, the State effectively becomes a "mediator by necessity." Id. at 79-80. Each party "invok[es] the jurisdiction of the Family Part . . . [and] assent[s] to the possibility that there will be some curtailment of what would otherwise be the ordinary rights concomitant to parenthood." Id. at 80.

In determining custody issues, "the sole benchmark is the best interests of the child." Ibid. The statutory scheme of N.J.S.A. 9:2-4(c) specifically addresses some, but not all, of the factors a court should consider when determining the custody arrangement that is in the minor's best interests. N.J.S.A. 9:2-4(c). In deciding the issue, the court is required to "consider and articulate why its custody decision is deemed to be in the child's best interest." Terry v. Terry, 270 N.J. Super. 105, 119 (App. Div. 1994). 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 or children if the circumstances warrant such an appointment." Milne, supra, 428 N.J. Super. at 199 (alteration in original). The GAL's findings and recommendations are submitted to the court. R. 5:8B(a).

Applying these principles to the instant matter, we note that Millner, the court appointed GAL, submitted her report on August 27, 2012, and testified extensively with respect to her investigation, findings, and recommendations during the plenary hearing. Related to the specific claims raised in this appeal, the record demonstrates that Millner was aware of Barbara's "preference" and reported that Barbara told her several times throughout the investigation that she did not want to spend overnights with Father. Yet, Barbara also expressed that she loved him. Millner opined that Barbara believed that she had to align herself with Mother and, as a result, resisted parenting time with Father. With respect to Hodsden's email sent after the hearing opposing the change of custody, Millner testified she found nothing in the message that would have caused her to change her recommendations.

In considering whether to award custody of Barbara to Father, Judge DeBello reviewed the witness testimony and found the GAL credible. The judge also considered Hodsden's objection to the recommended change of custody, but dismissed her "shock and concern" noting that she missed an opportunity to speak to the GAL, and further, it was she who recommended a GAL to address this "highly contested custody matter."

The judge based his decision on a meticulous assessment of Rule 5:3-7(a)(6), which provides, "[o]n finding that a party has violated an order respecting custody or parenting time, the court may order . . . (6) temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the [child]." Here, the parties' conflicts over the shared custody of their daughter predates their 2007 divorce. Judge DeBello reasonably found that Mother's repeated violation of the parenting time orders and her failure to follow Dr. Rosenbaum's recommendations "materially and substantially" affected the relationship between Barbara and Father, and caused Barbara's alienation from him, warranting a modification of custody to protect Barbara's best interests.

Judge DeBello also considered each factor under the custody statute, N.J.S.A. 9:2-4(c). With respect to the factor addressing the preference of the child, the judge keenly recognized that Barbara would not want the custody to change, and doubted her capacity and maturity to express a preference. The judge stated that "by virtue of her empowerment and the alienation in this case [] her capacity to express an intelligible, objective preference is . . . mitigated."

We are satisfied that Judge DeBello fully addressed all of the issues attendant to this difficult and highly charged matter. His recommendations for continued counseling and monitoring of Barbara's well-being are indicative of the court's sensitivity to the best interests of this child. Notwithstanding the information we received at oral argument with respect to ongoing challenges in the family, we are satisfied that the decision made by the court in January 2013 was amply supported by the credible evidence in the record. We determine there was no abuse of discretion in awarding custody of the parties' daughter to Father.

1 A fictitious name will be used to protect the privacy of the child involved in this action.

2 In support of her emergency application, Mother alleged, among several matters of concern, that Barbara became upset while in New York City with Father and Eileen, over noises they were making in bed.

3

Dr. Rosenbaum specifically noted, (1) Barbara gave highly inconsistent statements about her relationship with Father and Eileen, on the one hand stating she was not close to either one, yet indicating a desire to be close in the future; (2) Barbara expressed no ambivalence with respect to her feeling for her parents, being fully able to express her positive feelings for her mother, but unable to articulate why she is not close to her father; (3) Barbara accepted sole responsibility for the decision not to see her father, stating that her mother leaves the decision about parenting time to her and tells Barbara she is old enough to make the decision based on her own feelings; (4) Barbara showed no guilt or remorse that she might be hurting her father by avoiding visitation with him; and (5) Barbara recounted "borrowed scenarios and fragmented memories" for example, the noises between father and Eileen that upset Barbara during the New York trip, were later acknowledged as laughing and not "inappropriate" behavior.