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Hoy v. Willis

Decided: December 21, 1978.


On appeal from Hunterdon County Juvenile and Domestic Relations Court.

Fritz, Bischoff and Morgan. The opinion of the court was delivered by Bischoff, J.A.D.


The sole issue in this appeal is whether a child six years of age should remain in the custody of his foster mother, a paternal aunt with whom he was voluntarily placed at the age of 1-1/2 years by his biological mother, or whether his custody should be awarded to the biological mother.

The facts are basically undisputed. On July 17, 1970 defendant Debra Willis married George H. Willis. They had three children: Jody, born September 11, 1970, and twins, George H. Jr. and Tina, born December 27, 1972. George and Debra separated in November 1973. George Jr. and Tina were placed separately in the custody of two paternal aunts in April 1974 for several weeks. In June 1974 defendant placed George Jr. with plaintiff Adele Hoy because defendant was on the verge of a nervous breakdown. Tina at that time was placed with a paternal uncle. On August 8, 1974 defendant executed a "right to custody" document which gave custody of George Jr. to plaintiff. While the parties dispute the reason for and the significance of that document, it is unimportant to the ultimate determination of this case.

In November 1975 defendant was hospitalized with a nervous breakdown. This was followed by a period of depression due to marital problems. There were subsequent hospitalizations for physical and psychological disorders. Defendant was divorced from George, moved to Rhode Island and remarried.

Defendant visited George Jr. once in the autumn of 1974 and briefly in March and July 1976. Other than these three visits, defendant did not see or communicate with

George Jr. from the time of his placement with plaintiff in June 1974 until January 1978.

At the time of defendant's visit in July 1976 she took Tina back to Rhode Island with her and has since been awarded custody of Tina by the Rhode Island Family Court. Shortly thereafter, on October 6, 1976, plaintiff filed a complaint in the Juvenile and Domestic Relations Court in New Jersey seeking an award of temporary custody of George Jr. Defendant did not appear at the hearing and by order of the court, dated November 8, 1976, plaintiff was awarded custody of George Jr. until he "shall attain the age of 18 years or the further direction of the court."

Passing intervening proceedings not now relevant to this appeal, a hearing held in January 1978 resulted in the entry of an order dated January 12, 1978, (1) making George Jr. a ward of the court pursuant to N.J.S.A. 30:4C-12; (2) awarding temporary custody of George Jr. to the Division of Youth & Family Services (DYFS) and his physical custody to Lelia Willis, a paternal grandmother; (3) ordering a psychiatric examination and testing of George Jr. to determine whether the "removal of [George] from the home of plaintiff would be detrimental to his psychological well-being;" (4) ordering that George Jr. not be removed from New Jersey, and (5) ordering that the natural parents pay for his support and maintenance.

Thereafter the attorneys for the parties met with the trial judge and agreed to select the psychiatrist who would perform the psychiatric examination and testing, and agreed to share in the cost thereof.

The parties have stipulated that defendant has completely recovered from her breakdown, that the parties are equally fit to care for the child and that there is no evidence or allegation of abandonment of the child by the mother.

The case was tried August 2, 1978 and the foregoing facts were developed either by testimony or stipulation.

The only expert witness to testify was Dr. Hollander, a psychiatrist, who had examined and tested George Jr. at the

request of the attorneys for plaintiff and defendant. He had also interviewed plaintiff and defendant. It was his opinion that, as a result of George Jr. having lived with plaintiff for over four years, she had become his psychological mother and removing him from her care would cause profound psychological complications and constitute a major upset in the continuity of his life. The effect of a transfer in custody at this time would be traumatic and would result in a marked regression in behavior, depression, anxiety and anger requiring professional therapy. When asked how long these effects would continue, he replied that he was not certain George would ever recover and said, "Certainly it would take at least 7 years for him to come back to equal balance." Dr. Hollander said that George Jr. recognized defendant as his biological mother but that the relationship had no meaning for him. His psychological ties were all with plaintiff. It was his considered opinion that George Jr.'s development and best interests would be served by continuing his custody in plaintiff. This was the only expert testimony in the record.

The trial judge rejected the opinion of Dr. Hollander, apparently in large part because of the doctor's response to a hypothetical question put ...

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