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M. v. K.

Decided: August 24, 1982.

M., PLAINTIFF,
v.
K., DEFENDANT



Krafte, J.J.D.R.C. (temporarily assigned).

Krafte

[186 NJSuper Page 365] There has arisen a novel question during the pendency of this custody dispute: Do the United States and New Jersey Constitutions*fn1 allow a party to invoke a legislatively-created privilege*fn2

to prevent the admission of certain material evidence at a child custody hearing? There is a dearth of case law dealing with the privilege under consideration and no published New Jersey decision resolves either inquiry. Thus, we are compelled to do so today.

We begin with an examination of the history of this case.

Plaintiff, the father of the infant child of the marriage, a girl age four, filed a complaint for custody by way of application for order to show cause, on April 20, 1982. At that time plaintiff alleged that defendant, mother of the infant, had wrongfully removed the child from the State of New Jersey.

In response to plaintiff's emergent application, the court scheduled a return date of May 11, 1982, at which time defendant was to show cause why an order should not be entered which would require her to return the infant to New Jersey and would award temporary custody of the infant to plaintiff. Further, the court appointed a guardian ad litem to represent the infant's interests and directed the Bergen County Probation Department and its counterpart in Bibb County, Georgia, where the infant had been removed by defendant, to prepare a custody investigation report.

What is central to our purposes, however, is that attached to plaintiff's emergent application were a number of letters and reports from two psychiatrists, two psychologists and a medical doctor. As will be seen, it is the inclusion in plaintiff's application

of one letter*fn3 from each psychiatrist, both addressed to plaintiff's attorney, which is the genesis of the conflict at hand.

Following the return date of May 11, 1982 the court entered an order on May 12, 1982, which, among other things, directed defendant to return the infant to New Jersey within 72 hours of May 11, 1982, and continued the return to May 17, 1982.*fn4

On May 18, 1982, after the return of the previous day, the court entered another order which included a provision calling for an examination of the parties and infant by a court-appointed psychiatrist.

Thereafter, plaintiff, defendant and infant were examined by said psychiatrist, with defendant and the infant each appearing on more than one occasion. The psychiatrist's report was filed with the court on July 19, 1982.*fn5 Subsequent thereto, amid allegations of sexual abuse of the infant by plaintiff and others, a peremptory custody hearing date was established.

Between the time of the appointment of the psychiatrist on May 18, 1982 and the present there were a number of applications to the court. In one, by way of motion returnable July 16, 1982, defendant's attorney asked that plaintiff be barred from introducing into this case any and all reports, ...


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