C.T. v. M.L.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

C.T.,

Plaintiff-Respondent,

v.

M.L.,

Defendant-Appellant.

_________________________________

November 24, 2014

Submitted October 8, 2014 Decided

Before Judges Waugh and Maven.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-27-06.

Burham Law Group, LLC, attorneys for appellant (Philip S. Burham, II, on the briefs).

Borger Matez, P.A., attorneys for respondent (Deena L. Betze, on the brief).

PER CURIAM

Defendant M.L. appeals the Family Part's January 25, 2013 order denying her post-judgment motion seeking restoration of joint custody of the parties' children and other relief. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

M.L.1 and plaintiff C.T. were married on October 2, 1999. They had three children: Carl, who was born in September 2000; Jane, who was born in July 2002; and Lila, who was born in June 2004. M.L. and C.T. separated in August 2005 and were divorced in October 2006.

At the time of the separation, M.L. had residential custody of the three children. In January 2006, residential custody was transferred to C.T. as the result of significant injuries inflicted on Lila by F.L., who was M.L.'s boyfriend at the time and is now her husband.2 M.L.'s parenting time with the children was suspended.

Following several risk assessments by the then Division of Youth and Family Services (DYFS), M.L. was permitted limited parenting time on condition that she not have contact with F.L. In September, C.T. and M.L. entered into a property settlement agreement (PSA). It provided for joint legal custody, with C.T. to have sole residential custody. The PSA called for M.L. to have "liberal and reasonable" parenting time pursuant to a schedule established in the document. The PSA also contained the following condition

[M.L.] shall have no contact with her former boyfriend, [F.L.] or his family members. Said prohibition shall include, but not be limited to [M.L.] and the children not visiting his home, no phone contact, etc. If [M.L.] does, in the future, resume contact with [F.L.] and same is proven, [M.L.] forfeits her parenting time with the children pending future order of the court.

The final judgment of divorce, with the PSA attached, was filed on October 10. M.L. married F.L. on November 11. When C.T. learned of the marriage, he implemented the provision suspending parenting time. M.L.'s subsequent motion to reinstate parenting time was denied in February 2007, although the motion judge did permit limited telephone contact between M.L. and the children.

Following extensive further motion practice, another Family Part judge entered an order in May 2010 awarding C.T. full legal custody and suspending M.L.'s right to telephone contact with the children. He explained that

there has been a substantial change of circumstances demonstrated by [C.T.] at this time. All three children were evaluated by Dr. Seidman, who provided thorough reports, and recommended that all three children cease having contact with their mother . . . . All three children shall continue to enroll in therapy to further address their psychological issues. Pending further Order of the Court and recommendations by a licensed psychologist, [M.L.] shall not have any contact with their children.

In August, the judge denied M.L.'s motion for reinstatement of joint custody, explaining that M.L. had not "engaged in sufficient counseling to warrant a review of a modification of their custody arrangement."

In October 2012, M.L. filed a motion for enforcement of litigant's rights, seeking, among other relief, (1) restoration of joint legal custody, (2) establishment of a schedule allowing her supervised parenting time and telephone contact, and (3) appointment of a parenting coordinator to facilitate parental reunification. Following oral argument on January 25, 2013, the motion judge denied M.L.'s motion, again finding that she had not demonstrated entitlement to the relief sought based on the requirements of prior court orders. The judge determined that the brief letters from M.L.'s counselor attached to her motion "did not provide any sufficient analysis to satisfy the Court that [M.L.] has satisfied the letter and intent of the prior Order[,]" which required her to undergo counseling with the children's therapist. The judge also refused to recalculate M.L.'s child support obligation. This appeal followed.

II.

On appeal, M.L. argues that the motion judge erred in finding that she failed to present a prima facie case of changed circumstances sufficient to warrant a change in the custody and parenting arrangements. She also contends that the judge unconstitutionally terminated her parental rights. Finally, she asserts that the judge erred in refusing to modify her child support obligation.

We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). Similar deference is accorded to the factual findings of those judges following an evidentiary hearing. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Finally, a judge's purely legal decisions are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

A party who seeks modification of a judgment or order regarding custody or visitation "must meet the burden of showing changed circumstances and that the agreement is [no longer] in the best interests of the child." Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div.), certif. denied, 178 N.J. 34 (2003); see also Finamore v. Aronson, 382 N.J. Super. 514, 522-23 (App. Div. 2006). The issue is "two-fold and sequential." Faucett v. Vasquez, 411 N.J. Super. 108, 127 (App. Div. 2009), certif. denied, 203 N.J. 435 (2010). The party seeking the modification "must first make a prima facie showing . . . that a genuine issue of fact exists bearing upon a critical question such as the best interests of the child[] . . . . Once a prima facie showing is made, [the party] is entitled to a plenary hearing to resolve the disputed facts." Id. at 127-28 (first three alterations in original) (citation and internal quotation marks omitted).

The Legislature has found and declared that it is "the public policy of this State to assure minor children of frequent and continuing contact with both parents . . . and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy." N.J.S.A. 9:2-4. Both parents have a fundamental right to "the custody, care and nurturing of their child[]." Watkins v. Nelson, 163 N.J. 235, 245 (2000) (quoting In re D.T., 200 N.J. Super. 171, 176 (App. Div. 1985)).

However, because neither parent has a right that is superior to the other, "the sole benchmark" to a determination of their parenting arrangements "is the best interests of the child," Sacharow v. Sacharow, 177 N.J. 62, 79-80 (2003), that is, 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)) (internal quotation marks omitted). The child's best interests are controlling "no matter what the parties have agreed to." 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)) (internal quotation marks omitted).

Pursuant to N.J.S.A. 9:2-4, a judge determining custody shall consider 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.

"The age of the child certainly affects the quantum of weight that his or her preference should be accorded." Lavene v. Lavene, 148 N.J. Super. 267, 272 (App. Div.), certif. denied, 75 N.J. 28 (1977). However,

"[a] trial judge is not bound by a young child's preference to live with one parent over the other." The judge is only required to give "due weight to the child's preference;" the preference is a factor which the judge should consider along with all of the other relevant factors. Thus, stated preferences are not conclusive but must be considered in applications for modification.

[Ali v. Ali, 279 N.J. Super. 154, 169 (Ch. Div. 1994) (quoting W.W. v. I.M., 231 N.J. Super. 495, 511 (App. Div. 1989), appeal dismissed, 121 N.J. 630 (1990)).]

See also Sheehan v. Sheehan, 51 N.J. Super. 276, 291 (App. Div.), certif. denied, 28 N.J. 147 (1958); Boerger v. Boerger, 26 N.J. Super. 90, 103 (Ch. Div. 1953). Courts should also evaluate the "'character, condition, habits and other surroundings' of the parents in considering their fitness and the welfare of the children." Sheehan, supra, 51 N.J. Super. at 291 (quoting Clemens v. Clemens, 20 N.J. Super. 383, 392 (App. Div. 1952)). We interpret "other surroundings" to include other people in the parent's life who are likely to come into contact with the children, such as, in this case, F.L.

We reject M.L.'s argument that her parental rights have been terminated. Parental rights can only be terminated pursuant to N.J.S.A. 30:4C-15. The three judges who have handled this matter have made it clear that M.L.'s access to the children is subject to reinstatement and expansion under appropriate circumstances keyed to the best interests of the children. In fact, although the PSA uses the word "forfeit," it further provided "pending the further order of the court."

In addition, the provisions of the PSA with respect to M.L.'s ability to have contact with her children if she had contact with F.L. cannot be viewed as unchangeable. As noted above, a child's best interests are controlling "no matter what the parties have agreed to." See N.J.S.A. 9:2-4(d), which provides that a "court shall order any custody arrangement which is agreed to by both parents unless it is contrary to the best interests of the child." We have held that "the agreement between the parties has no binding effect insofar as visitation is concerned. The question is always what is in the best interests of the children no matter what the parties may have agreed to." Hallberg v. Hallberg, 113 N.J. Super. 205, 209 (App. Div. 1971).3

Nevertheless, the history of F.L.'s abuse of Lila is highly relevant to the negotiation of the PSA. Just prior to that time, the relationship among M.L., F.L., and the children was the subject of intense scrutiny by DYFS and the county prosecutor. We find no basis in the record before us to believe that the PSA's provision precluding contact between M.L. and the children if she maintained contact with F.L. was contrary to the best interests of the children at the time that M.L., with the advice of counsel, agreed to it.

The question before the Family Part on M.L.'s most recent motion was whether the circumstances have sufficiently changed to warrant consideration of a change in the custody and parenting time arrangements. We find no abuse of the judge's discretion in his determination that the conclusory submissions attached to M.L.'s motion failed to satisfy the requirements of the court's prior orders. The repeated filing of essentially the same motion hoping for a different result will not solve the problems preventing contact between M.L. and her children.

Once M.L. establishes that she has changed sufficiently to warrant a review of the issue, there will have to be a very careful evaluation of (1) whether the best interests of the children would be served by renewed contact with M.L. and (2) what limitations, if any, should be established. The judge must separately determine whether there should be contact between the children and F.L. Finally, the judge will need to consider whether M.L. and F.L. are likely to abide by the terms of any resulting order, including any provision limiting contact between the children and F.L.

Our reading of the record suggests that considerable damage was done to the parent-child relationship in the past, based primarily on M.L.'s conduct and that of her now husband. The Family judge has the responsibility to act carefully to protect the children's best interests. Even when a parent's constitutional right to raise his or her children is at issue, the "right [is] tempered by the State's parens patriae responsibility to protect children whose vulnerable lives or psychological well-being may have been harmed or may be seriously endangered by a neglectful or abusive parent." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012) (citing N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008)). The ultimate focus of the exercise is the best interests of the children, rather than the parents.

Having reviewed M.L.'s remaining issues, including the issue of child support, we find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 We use initials for the parties and pseudonyms for the children for the sake of confidentiality.

2 F.L. eventually pled guilty to one count of third-degree endangering the welfare of a minor. N.J.S.A. 2C:24-4.

3 Although not determinative, we note that this appeal is the first time M.L. has challenged the PSA provision at issue, despite repeated motion practice addressed to her requests for more contact with the children.