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Fusco v. Fusco

Decided: October 20, 1982.


On appeal from the Superior Court, Chancery Division, Bergen County.

Michels, Pressler and Trautwein. The opinion of the court was delivered by Pressler, J.A.D.


Plaintiff Denise Fusco appeals from an order entered by the Chancery Division, without oral argument or evidentiary hearing, according her former husband, defendant Lawrence Fusco, bi-weekly visitation with their daughter, then five years old. As defendant presently is serving a 32-year term at the New Jersey State Prison at Rahway for first degree murder, the order requires plaintiff to "produce the infant child, Tiffany, on the second and fourth Sunday of each month at defendant's place of confinement for two hours of visitation with defendant." We reverse and remand for an evidentiary hearing.

The parties were married in 1974. Plaintiff instituted this divorce action on the ground of extreme cruelty in April 1976, just a month prior to the child's birth. An attempted reconciliation failed, and a judgment of divorce was finally entered in May 1979. Custody of the child remained in plaintiff subject to defendant's right to visitation. In the summer of 1979 defendant was arrested on charges of first degree murder and conspiracy to commit murder, and in May 1980, following a jury trial, he was convicted of both charges and sentenced to an aggregate 32-year term. We are advised that the conviction was affirmed on appeal. The murder itself was a brutal one, defendant having waylaid his victim on an interstate highway where he bludgeoned him to death.

The record further shows that from the commencement of defendant's incarceration his parents have attempted not only to maintain their own grandparental relationship with the child but also to keep her father's memory fresh in her mind. She had been told that he was away working at a job in California

and she received periodic telephone calls and letters from him. Insofar as appears from the record, she has not yet been told the truth about his absence. Plaintiff, following defendant's incarceration, initially had cooperated with the paternal grandparents in their desire for frequent access to the child, but relations between them broke down in June 1980 as a result of the grandparents having taken it upon themselves, without plaintiff's knowledge or permission, to take the child to Rahway for a visit with her father. The child thought that she had been to California. That is thus far the only time she has seen him since his incarceration.

In December 1980 defendant moved the court for a visitation order requiring the child to be brought to Rahway on a periodic basis. His motion was supported by his own certification attesting to his love for the child, certifications of the grandparents generally critical of plaintiff because of her resistance to physical contact between father and child in the present circumstances, and the certification of his attorney, annexed to which were letters written by five well-wishers of the elder Fuscos, including clerics and local political figures, opining that the child should see her father in prison. In opposition to the motion, plaintiff filed her own certification expressing her fear that taking the child to see her father in prison, subjecting her to the prison environment and exposing her to inevitable premature discovery of the truth about her father, all at the age of 4 1/2, would cause her irreparable psychological and emotional harm and would impair the good adjustment she had made to the father's absence in the interim. The mother also responded to the battle of public opinion commenced by the father by submitting to the court letters from various friends and acquaintances as well as from the director of the child's nursery school opining that the child should not be taken to Rahway for visitation. In addition, she submitted a petition signed by 67 "friends and loved ones of Tiffany Fusco" urging against such visitation.

Based on these papers in support of and opposition to defendant's motion, the judge on his own motion entered an order in

December 1980 requiring plaintiff and the child to submit to psychiatric examination at the county mental health facility "for the sole purpose of making a recommendation regarding the nature and extent of visitation to be granted to the defendant, Lawrence Fusco, if any." He further ordered that defendant be examined by a Rahway State Prison psychiatrist, who was then to file a report "regarding his opinion as to the nature and extent of visitation to be granted to defendant."

Prior to the submission of these reports defendant's attorney filed another certification detailing the continuing difficulties between plaintiff and the paternal grandparents and annexing another batch of letters from the grandparents, defendant and a state assemblyman addressing such matters as plaintiff's recalcitrance, defendant's love for the child and defendant's rehabilitation progress.

In the late spring of 1981 the ordered psychiatric reports were filed. The report dealing with plaintiff and the child consisted of a six-page, single-spaced, detailed review and evaluation by Dr. Gerald Meyerhoff, senior county psychiatrist in charge of children's psychiatric services. His report was accompanied by a six-page, single-spaced, detailed social history prepared by a senior psychiatric social worker on the ...

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