On appeal from the Superior Court of New Jersey, Chancery Division, Passaic County.
Crane, Milmed and King. The opinion of the court was delivered by Milmed, J.A.D.
The basic issue in this matrimonial suit involves the propriety of the sua sponte determination of the trial judge, included in the June 12, 1979 judgment of divorce, committing the two minor children of the parties to their "joint custody" on a "time sharing" schedule, the children to be with each parent for four continuous months with visitation with the other parent every other weekend. Defendant Susan M. Beck appeals from this part of the judgment as well as from the portion "which provides for support for the infant children of the marriage based upon the joint custody arrangement."
The essential facts are not in dispute. The parties were married in 1963 and have two adopted children, girls now of the ages of 11 and 9 years respectively.*fn1 In February 1976 plaintiff M. Arthur Beck moved out of the marital home, and in September 1977 he instituted this suit seeking a divorce on "no fault" grounds, N.J.S.A. 2A:34-2(d). His complaint made no formal demand for custody of the children. Rather, he asked for "reasonable and liberal rights of visitation with the children." Defendant filed her answer to the complaint, along with a counterclaim seeking dissolution of the marriage on the ground of plaintiff's willful and continued desertion of her for more than 12 months, N.J.S.A. 2A:34-2(b). She specifically sought custody of the two infant children who continued to live with her in the marital residence after plaintiff left in 1976.
Following the close of proofs the trial judge delivered an oral opinion in which he found that the parties live in the same [173 NJSuper Page 35] community, viz. , Clifton;*fn2 that there have been no visitation problems, plaintiff has visitation "with no difficulty whatsoever" between defendant and himself; that although he (the judge) had not interviewed the children, and although plaintiff had made no formal demand for custody, there was an apparent need in this case, particularly because the children are adopted, for them "to have the benefit, contact, and security of both parents"; that "the need for the security and contact of both parents is particularly suited in this case by reason of the proximity and presence of both parties in the same community"; that "children of divorce are, particularly in a case such as this where they are adopted, best able to keep [ sic ] with the trauma of divorce by the maximum amount of contact, control, and supervision of both parties, and despite the assumed insinuation of animosity between the parties," and that at one time (in 1978) plaintiff did strike and injure defendant. The trial judge "denied" plaintiff's cause of action for divorce; granted defendant's cause of action for divorce on the ground of desertion as set forth in her counterclaim; provided for equitable distribution of the marital assets; directed that the parties shall have "joint custody" of the children*fn3 and that they are "to select a family counsellor or a counselling agency" who would be available "to
mediate differences, if there should be any," and for counselling; set the amount of alimony for defendant-wife; provided for the support and maintenance of the children; required defendant to pay for her household expenses when she has the children, including food, consumables and all clothing for the children, and awarded a counsel fee of $7,500 and an accounting fee of $2,500, to be paid by plaintiff, for legal and accounting services rendered on behalf of defendant.
Defendant, by motion in the trial court, sought: (1) amendment of the trial judge's findings "insofar as they conclude that an order of joint custody would be in the best interests of the parties' children," and (2) amendment of the judgment "by striking the provision for joint custody and directing, instead, that sole custody be awarded to the defendant, and adjusting the award of child support accordingly." She advanced the following grounds:
As a consequence of the motion, the trial judge scheduled "a plenary hearing as to the custody of the infant children" and directed that "a Diagnostic Center evaluation of the parties and the children be held forthwith." Both the trial judge and this court denied defendant's application for a stay of the plenary hearing and Diagnostic Center evaluation. Thereafter, the trial judge dispensed with his requirement for a Diagnostic Center evaluation. He conducted a plenary hearing at which he heard
the testimony of a specialist in psychiatry and child psychiatry; the defendant-mother; a psychologist and associate professor at Rutgers University; a clinical psychologist, and a psychiatric social worker. The plaintiff-father did not testify at this hearing.
The trial judge interviewed the two children in his chambers, with no one else present. He pointed out that "they clearly do not want to have a joint alternating living arrangement as ordered by the court. They want to live at Robin Hood Road [the marital residence] with their mother." He reported:
I even asked them suppose they even change houses and your father moves to Robin Hood Road and your mother gets a new house. Is it the house you want to stay in? You'll stay at Robin Hood Road with your father and they said no. They would want to live with their mother wherever she moves to, but they like being with their father and they love their father and they love their mother and they certainly want to continue the visitation.
He found the children to be "sincere and honest in their beliefs."
Defendant, a college graduate with two master's degrees, testified that all of her "graduate work and undergraduate work was in education, guidance, child growth and development." She reported that ever since the trial judge announced his initial decision regarding joint custody, her relationship with plaintiff has been "[t]errible." She gets "physically upset when [she has] to look at him or talk to him . . .." She does not feel that she could cooperate with him and have open lines of communication with him in an alternating custody arrangement.
We note here that plaintiff, who is a commercial photographer, is "on location six to eight times per year." He says, however, that "[w]hen I would have the children in my custody, I would not take ...