M.A. v. A.I.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

M.A.1,

Plaintiff-Respondent,

v.

A.I.,

Defendant-Appellant.

________________________________

December 15, 2014

Argued October 28, 2014 - Decided

Before Judges Yannotti, Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-973-09.

A.I., appellant, argued the cause pro se.

Lizanne J. Ceconi argued the cause for respondent (Ceconi & Cheifetz, L.L.C., attorneys; Ms. Ceconi and Sheryl J. Seiden, of counsel and on the brief; Andrea Joy B. Albrecht, on the brief).

PER CURIAM

Defendant, A.I., appeals from orders entered by the Family Part on December 27, 2011, awarding plaintiff sole legal and residential custody of the parties' children in order for plaintiff and the children to engage in a program of reunification, and on March 16, 2012, denying reconsideration of the prior order. Defendant has not had any authorized contact with the children in over two years. Because we do not consider an extended loss of custody to have been an intended consequence of the Family Part order, we reverse and remand for an expeditious determination regarding defendant's parenting time.

Plaintiff, M.A., and defendant were married in Bucharest, Romania in 1989. Two children were born of the marriage, a son and a daughter. In 2007, the marriage began to deteriorate, and both children sided with their father and began to show signs of overt hostility and anger toward their mother. Plaintiff attributed the children's behavior to defendant's influence over them, but defendant attributed the behavior to plaintiff's own parenting style. After plaintiff filed for divorce, the children's antipathy toward their mother escalated, and the children refused to spend time with her, drive with her or eat meals she prepared. Plaintiff, a neurologist, and defendant, a college professor, agreed to enlist the services of a therapist for the children, but the situation did not improve.

In May 2009, plaintiff filed a motion to compel the parties and children to continue to attend family therapy with the therapist, permit only one party to reside in the marital home with the children and create a parenting schedule and appoint a guardian ad litem ("GAL") for the children. The trial judge ordered the parties and children to continue in therapy and created a rotational parenting plan in the marital residence. Dr. Sharon Ryan Montgomery was plaintiff's custody expert, and Dr. James Wulach was defendant's expert.

In October 2009, the trial judge interviewed the children, who clearly voiced a preference for living with their father. The children indicated their preferences and their unhappiness about the impending separation. Subsequently, additional motions were filed by both parents, mostly concerning their relationship with the children. In early 2010, because the situation had not improved, the court appointed Ellen Marshall, Esq. as GAL for both children and limited defendant's contact with the children as well as his parenting time to one weekday dinner. The parties were barred from discussing the divorce with the children. The court modified the rotational parenting arrangement to give plaintiff more time with the children.

Whenever the children spent time with their father, the dynamic between the children and their mother continued to deteriorate. Additional therapies were ordered for the parties, including Overcoming Barriers Family Camp in Vermont. The trial judge attempted many different approaches to address the ongoing custody dispute, but the children's relationship with their mother continued to deteriorate as they became rigidly aligned with their father.

In February 2011, plaintiff moved pendente lite to enroll the children in the Family Bridges reintegration program ("Family Bridges") in California, and sought sole legal and physical custody for six months. Plaintiff alleged that defendant had systematically alienated the two children from her. The trial judge conducted a twenty-three day hearing on the pendente lite motion and considered the testimony of both plaintiff and defendant. In addition, the court heard the testimony and various recommendations of the children's therapists, the GAL, plaintiff's custody expert, defendant's custody expert, as well as the court's own custody expert, Dr. Abraham Worenklein.

Dr. Worenklein said in his evaluation report, "When one considers the different symptoms of parental alienation, one is struck by the fact that the children did demonstrate many of the characteristics cited in the literature"2 and that the parental alienation in this case was "moderate to severe." The trial judge also considered the testimony and recommendations of a professional from Family Bridges, Dr. Richard Warshak.

On September 21, 2011, the trial court determined that it was in the best interests of the children to have a relationship with both of their parents. Recognizing that the children's relationship with plaintiff needed immediate intervention, the trial court ordered that, if accepted, plaintiff and the children would participate in Family Bridges in October 2011, and that sole legal and physical custody of the children was awarded to plaintiff commencing one day prior to attendance in the program and continuing for ten days after, during which time defendant was to have no contact with the children and the parties would share the costs. However, it was later reported to the court that Family Bridges would not accept the family under the terms of the September 21, 2011 order because it gave plaintiff custody for too brief a time to be effective.

On December 27, 2011, the court issued an order superseding the September 21, 2011 order. On December 29, 2011, the court issued a written opinion granting plaintiff's motion to enroll the family in Family Bridges, awarding her sole custody of the children pending further order of the court, suspending defendant's parenting time, and barring defendant from having any contact with the children for ninety days. The order provides that, upon the family's return from Family Bridges, Dr. Marcy Pasternak, a psychologist, would assess and evaluate the status of the relationship between the children and plaintiff as well as defendant's willingness and propensity to support the children's relationship with their mother, and report to the GAL and the court. The court also allocated the costs of Family Bridges and indicated that, based upon the success of the program measured by an improvement in the children's relationship with plaintiff, defendant's share could be reduced.

In support of its decision, the trial court made detailed findings that defendant had engaged in a course of conduct that amounted to alienation

The father has been instrumental in the children's rejection of their mother. He has repeatedly taken the position with the children, with plaintiff, with this court and various experts that the children's negative feelings towards their mother are justified and he has empowered them to speak and behave inappropriately to their mother, to question experts and authorities involved in this case and even to question the authority of this court. Yet he has never requested sole custody, never expressed concern for the safety of the children in plaintiff's care and never accused plaintiff of child abuse.

The court finds that the defendant inappropriately involved the children in the parties' dispute, discussed legal strategy with them and used them to gather information and bolster his claim that they became estranged from their mother by her own doing. When defendant should have shielded and protected the children from the turmoil of divorce, he forced them to take sides.

In further support of its decision, the trial court referenced evidence of parental alienation syndrome ("PAS") and relied upon eight criteria of PAS in finding that the children had been alienated. Specifically, the trial court stated

In New Jersey, while there are several cases attempting to deal with the problem, there is no definitive analysis as to what actually constitutes parental alienation. This court now holds that in order for a parent to sustain a claim that the other parent has alienated their child, the proponent must prove the presence of eight criteria in the child.3

Additionally, while the court indicated that it considered the best interest factors listed in N.J.S.A. 9:2-4(c) for a determination of custody, the court made no specific findings concerning those factors, stating that "[i]n the context of alienation litigation, while these factors are important, they are not dispositive." The court also stated that the eight criteria of PAS are "[m]ore probative, relevant, and significant in determining whether there is alienation and what to do about it . . . ." The court chronicled the alienation criteria, made express findings about the conduct of the parties, their children, and their credibility, and accepted the recommendation of Dr. Worenklein that the family should attend Family Bridges as soon as possible. The trial court conducted no further analysis of the best interest factors under N.J.S.A. 9:2-4(c) except for finding that defendant "was on the edge of not being fit" and that a parent who engages in alienating conduct may be unfit.

On January 17, 2012, after plaintiff and the children had returned from Family Bridges, defendant moved for reconsideration of the December 27, 2011 order. At that time, the matter was assigned to a different Family Part judge after the retirement of the trial judge. The Family Part judge denied the application for reconsideration, finding that, based upon the record presented, defendant provided no legal basis for the court to reconsider the trial judge's decision. The court considered the additional argument, raised by defendant, that the trial judge had deferred decision-making for the children to Dr. Pasternak, but rejected it.

On March 15, 2012, plaintiff filed an order to show cause, seeking, among other relief, to hold defendant in violation of litigant's rights for failing to comply with the no-contact provisions in effect and to bar defendant from contacting the children for an additional 120 days. Plaintiff said in her certification that, while her relationship with her children had improved after completion of Family Bridges, the relationship deteriorated after defendant filed his motion for reconsideration.

According to plaintiff, defendant had been in contact with the children surreptitiously, in violation of the court's orders, and had encouraged the children to run away. On March 16, 2012, based upon that information, the Family Part judge extended defendant's no-contact period for an additional ninety days, finding that defendant had shown complete disregard for the court orders and for the children's best interests.

On April 16, 2012, defendant appealed from the December 27, 2011 and the March 16, 2012 orders. The parties filed various motions in this court, including a motion by defendant for parenting time, which we denied on March 11, 2014. Defendant then filed a motion for leave to appeal our denial of his motion for parenting time in the Supreme Court, and on May 22, 2014, the Court denied leave to appeal. The Court directed that we resolve the appeal in an expedited manner, and remanded the issue to the Family Part to address defendant's parenting time, without divesting our jurisdiction over that issue while on appeal.

After interviewing the children, the Family Part judge issued an order directing defendant and the children to undergo four reunification sessions with Dr. Pasternak to determine whether reunification with defendant could take place without further alienation of plaintiff and would be in the best interests of the children. The court indicated that, depending upon Dr. Pasternak's input and consultation with the GAL, it would, on its own motion, reopen the parenting time issue under the continuing limited remand. On July 10, 2014, Dr. Pasternak withdrew from the case, stating that it was not clinically sound for her to proceed given the parties' positions.

On appeal, defendant argues that the trial court erred in awarding sole custody of the children and barring him from having contact with the children. Defendant contends that, in making this custody determination, the trial court erroneously adopted the theory of PAS, since it is a novel theory and there was no evidence that it is generally accepted in the relevant scientific community. In addition, defendant argues that he was denied a fair trial due to economic disparity, conflicts, collusion and other trial errors. In response, plaintiff argues that the trial court properly articulated a definition of parental alienation based upon sound scientific data, relying upon articles submitted to the court and admitted into evidence without objection under N.J.R.E. 803(c)(18) as learned treatises.

We decline to address whether the trial judge erred in September 2011 when he awarded plaintiff sole custody of the children and barred defendant from having any contact with the children. As the record reflects, these determinations were made so that the family could secure admission to Family Bridges. It is clear that the court viewed that order as an interim measure, and never contemplated that defendant would be precluded from having any parenting time with the children from 2011 to the present time.

We note, however, that the trial judge erred by basing its custody determination in part upon the eight PAS criteria, which the judge drew from literature and testimony. Under N.J.R.E. 702, if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience or training may testify thereto in the form of an opinion or otherwise. However, in order to be admissible, the testimony must involve subject matter that is beyond the ken of the typical fact-finder, the field involved must be at a state of art that such an expert's testimony could be sufficiently reliable and the witness must have sufficient expertise to offer the testimony. Dehanes v. Rothman, 158 N.J. 90, 100 (1999).

At the time of trial, PAS was not a recognized syndrome in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), and it is not a recognized syndrome in the new fifth edition. The Supreme Court and this court have not yet determined that PAS is a scientifically reliable or generally accepted theory. The admission of novel scientific material like PAS must meet the test established in Frye, supra, 293 F. at 1014, that is, that the opinions are "generally accepted, within the relevant scientific community." State v. Henderson, 208 N.J. 208, 248 (2011); State v. Chun, 194 N.J. 54, 91, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008); State v. Harvey, 151 N.J. 117, 169-70 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000).

Neither the scientific reliability nor general acceptance of PAS was established in this case, by either the testimony of any expert or the literature. Indeed, the theory is still the subject of considerable controversy within the medical and legal communities and should not have played a part in the court's ruling. We express no opinion on whether evidence of PAS may ever be properly admitted. We note only that, in this case, a proper foundation for its admission was not established.

As we stated previously, it is clear the trial judge never envisioned that the December 2011 order would indefinitely prohibit defendant from having parenting time with the children. We note that, when the judge entered the order in September 2011, he stated that it was in the children's best interest to have a relationship with both parents. Therefore, the matter must be remanded to the trial court for an expeditious determination establishing the parenting time that defendant should enjoy, consistent with the children's best interests. Defendant should be afforded parenting time without any further delay, in the absence of evidence that it would not be in the children's best interests.

We note that the Family Part judge previously ordered defendant and the children to undergo four reunification sessions with Dr. Pasternak to determine whether reunification with defendant could take place without further alienation of plaintiff and would be in the best interests of the children. As noted, however, Dr. Pasternak withdrew from the matter before these sessions could take place. On remand, the trial court may, in its discretion, appoint another professional to replace Dr. Pasternak, consult with the GAL, and impose such conditions as it deems appropriate to address any concerns it may have regarding parental alienation or pertaining to custody of the children, given the intent of the September 2011 and December 2011 orders and the passage of time. If an evidentiary hearing is required in order to determine parenting time or custody, it should be conducted as soon as possible.

Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

1 To protect the identities of the parties' children as well as their relationship with their parents, we use initials throughout this opinion.

2 The report does not identify what literature Dr. Worenklein is referencing.

3 The trial court, without citing its source, identified the eight criteria as

1) a campaign of denigration of the parent;

2) weak rationalizations for the deprecation;

3) lack of ambivalence;

4) insistence that the rejection is the child's own idea;

5) reflexive support for the alienating parent in the parental conflict;

6) the absence of guilt or remorse over cruelty to the alienated parent;

7) the presence of borrow scenarios; and

8) the spread of rejection to extended family and friends of the alienated parent.