On appeal from Superior Court, Chancery Division, Monmouth County.
Michels and Petrella. The opinion of the court was delivered by Petrella, J.A.D.
Plaintiff Larry A. Wilke appeals from the denial of his 1983 application for visitation with his son born of his marriage to defendant, Sharon Wilke Culp. He had also sought a mediation process to assist implementation of visitation.
On this appeal plaintiff contends that: (1) the trial court's order denying him visitation was in effect an unconstitutional termination of his parental rights; (2) the judge erred by relying solely on the child's preference not to see him in terminating his right to visitation; (3) the judge failed to make proper independent findings of fact as to the best interests of the child; and (4) the judge erred in failing to hold a plenary hearing which would have given the court a basis to evaluate all the issues concerning his visitation request.
The affidavits submitted in connection with the proceedings below contain certain background facts. During the marriage of the parties, a son, Todd Wilke was born on January 12, 1968. Thereafter, on March 24, 1971 the parties were divorced in the state of Indiana. In that proceeding defendant was given custody of Todd Wilke. Plaintiff was granted certain visitation rights. On July 3, 1971 defendant married her present husband, John F. Culp III. Thereafter the Culps relocated to Fort Lee, New Jersey with Todd Wilke. They now reside in Monmouth County.
According to plaintiff, "in the middle of 1971" he experienced difficulties visiting with his son because defendant and her husband intentionally attempted to thwart his efforts at contacting Todd by phone or by written communication. Plaintiff alleges that during this time period defendant and her husband pursued a "cruel and vicious systematic plan" to keep him out of their lives and Todd's life. Plaintiff asserts that they did so by telling Todd malicious things about him so that Todd would reject him, by punishing Todd physically if he kissed, touched or played with or accepted anything from plaintiff and by telling Todd exaggerated stories of physical abuse by plaintiff against
defendant. All of this plaintiff claimed was aimed at brainwashing his son into refusing visits.
Defendant denied that she refused plaintiff visitation, and points to a January 28, 1972 letter from her new husband to plaintiff referring plaintiff to their lawyer as their attempt at cooperation in arranging visitation.
In any event, on plaintiff's application an order was entered in Indiana on October 21, 1971 allowing him visitation rights in New Jersey, as well as periods of temporary custody. Plaintiff Wilke thereafter relocated to Florida where he presently resides.
Because of difficulties plaintiff encountered in enforcing his visitation rights, he instituted suit in New Jersey in the Chancery Division (Matrimonial), in Bergen County late in 1972 and obtained a January 29, 1973 order granting him visitation rights on January 31, February 11 and February 21, 1973. On February 27, 1973 plaintiff obtained an order permitting him supervised visitation each Sunday from 2 to 4 p.m. at the Bergen County Children's Welfare Home, known as the "Conklin Home." A March 5, 1973 affidavit from the then superintendent of the Conklin Home stated that when Mr. Culp began bringing Todd to the Conklin Home pursuant to the court order, problems started with Wilke's visitation with his son. The superintendent noted that prior to this time the child had gotten along very well with his father. The boy was then terrified and expressed great fear at being left at the Conklin Home. When this developed John Culp was made a party defendant and the order further required that defendant bring the child to a court designated psychiatrist for an examination. This was done after some delay. One of the reasons the judge ordered a psychiatric examination in 1973 was because "the child expressed fear of his father."
Three psychiatric examinations were conducted and corresponding reports complied. These reports generally indicated that the boy's fear of his natural father and unwillingness to
visit with him had been increasing and that this was largely due to what the defendant and her husband had been telling the child. The reports also substantiate the plaintiff's allegations that his son was repeatedly told by the child's mother that plaintiff had injured her. The report of April 5, 1973, based on an examination conducted when Todd was five years old, stated:
When the examiner asked about Larry Wilke, Todd became uneasy and hesitant but did not appear frightened. He said, 'The other one is Wilke, he is not my daddy. Mommy does not like Wilke because he pushed her against a stove a long time ago. At that time I was a little baby. Mommy told me about it. Wilke dragged us into Court. Mommy is afraid of him because he hurt her when I was a little kid. Mommy said she does not want me to play with Mr. Wilke. He wanted to put me in Conklin Home and make me sleep there. He tried to take me away. He almost took me in his hands and took me out of the door. I didn't see it. My daddy [Culp] told me he does not like Mr. Wilke.'
Plaintiff's affidavit did contain an admission that he had on one occasion pushed defendant up against a stove during an argument and that this occurred in the child's presence. He also admitted slapping defendant on two occasions, conduct which he claims was intended to bring her to her senses in order to awaken her from a drunken state.
In the report of April 15 the psychiatrist concluded that Todd was unwilling to see his father "not because of any direct negative experience with Larry Wilke, but because of his mother's and stepfather's (especially his mother's) fears and comments in reference to Mr. Wilke." The doctor noted the significant impact that a custodial parent can have in coloring the feelings of a young child toward a separated or divorced parent. His opinion was that "if Todd was permitted visits with his natural father, a good relationship would probably be formed between ...