The opinion of the court was delivered by: O'hagan
This case presents difficult issues concerning enforcement of court orders mandating visitation by a non-custodial parent with the children born of the marriage. Plaintiff, William J. Ridley, has not seen his children since 1988. Notwithstanding plaintiff's consistent efforts to effectuate visitation and resulting court orders, he has been rebuffed time after time after time. He contends his former wife, defendant Joanne Dennison, has prevented such visits and further argues defendant is principally responsible for the estrangement that now exists between himself and the three children.
Plaintiff seeks a ruling by the court, pursuant to R. 1:10-3, that defendant, by her actions, has violated his rights. Upon. such finding, plaintiff maintains defendant must be incarcerated because of her wilful, intentional and continued violation of the court's orders dated November 16, 1994, and July 5, 1995. Expressing his frustration, plaintiff seeks, as well, an order terminating his obligation to pay child support on behalf of his son, Michael Ridley, age nineteen, presently a student at Monmouth University, as well as a similar termination when his daughters, Michelle and Marielle, now seventeen and thirteen years old respectively, reach their eighteenth birthday.
In support of his application, plaintiff maintains that his former wife has systematically and consistently alienated his children from him, utilizing both direct and subtle means, so that now all three children wish no contact with their father and are unwilling to visit. It is clear that the children have refused plaintiff's visitation in New Jersey, and declined to go forward on a three week visitation ordered by the court in November 1994.
The facts which underlie this dispute have been gleaned from the hearings conducted on July 5, 1995, and September 6, 1995, and the exhibits introduced into evidence. The parties were divorced on March 4, 1985. The judgment of divorce awarded custody of the three children to defendant subject to plaintiff's right to visitation. Almost from its inception, visitation was difficult. The children expressed serious reluctance to leave defendant's home, and it became necessary, in their words, for plaintiff to "drag" very young children away from their mother so that the visitation could go forward. Notwithstanding the passage of many years and their youth when the alleged incidents occurred, the children claim to have a vivid memory of the various times plaintiff insisted on visitation despite their expressed reluctance. Ultimately, plaintiff's visitation completely stopped, apparently as a culmination of the visit when Marielle, then age five, returned home complaining of fatigue and was later hospitalized. The only evidence introduced in the case established that it was learned later that Marielle suffered from meningitis. Defendant, as well as Michelle, the parties' daughter, who was age nine at the time, claim that Marielle nearly died because of plaintiff's neglect. Neither the passage of years nor Michelle's youth when the incident occurred have dimmed her anger toward her father. This is particularly striking since she was not present at the visitation, only Michael and Marielle went with their father for this particular weekend. Plaintiff has been unable to discuss the events and his understanding of the facts with Michelle. This event has come to symbolize, in the children's minds, plaintiff's alleged neglect of their interests and lack of concern for their well-being. Yet, plaintiff's explanation is common sensical and was neither contradicted nor challenged at the hearing. That is, Marielle was taking medicine when the weekend visitation began and plaintiff saw to it that she continued to take the medicine while under his supervision. Marielle expressed merely that she was tired and, therefore, plaintiff allowed his daughter to rest. Both Marielle and Michael returned home at the designated time. Plaintiff was, however, completely unaware that Marielle was seriously ill. But for the untoward consequences (i.e. Marielle's hospitalization), plaintiff's action at the time of the illness and his reaction to Marielle's complaints of fatigue are not unlike that acted out by non-custodial parents and children time and time again. Certainly, many parents enjoying an intact marriage have experienced circumstances when a child's illness or condition becomes far more serious than originally contemplated, notwithstanding a strict observance of the doctor's instructions.
There is no question that plaintiff has sought time and time again to effectively visit with his children, and has through the years sought the court's aid. The court's orders have been unavailing, as notwithstanding victories in court, visitation has been effectively denied.
Plaintiff is a Lieutenant Colonel in the Army and is now stationed in Germany. On November 16, 1994, the court ordered that the children were to visit with their father in Germany for a three week time period at plaintiff's expense. At the same time a plenary hearing was ordered concerning the appropriate level of child support that plaintiff was to pay for the three children.
The plenary hearing commenced on July 5, 1995. Plaintiff voluntarily agreed during the course of the hearing to increase support, acquiescing to defendant's exact demand, notwithstanding the fact that defendant, who appeared pro se, was having significant problems in proving her case. At the time, plaintiff advised that he was not going to allow money to stand in the way of his visitation with the three children.
Rather, plaintiff emphasized in the strongest of terms his desire to rekindle a relationship with the three children. It was made clear to defendant at the hearing that the children's visitation with plaintiff was to take place in August 1995, for a period of three weeks. The children, however, did not travel to Germany, nor otherwise visit with plaintiff, explaining to their father in a terse letter that their mother had urged them to visit but they refused. That position was advanced, as well, at the hearing conducted on September 6, 1995, by defendant, Michael and Michelle, all three reiterating in very much similar language that defendant was not at fault nor to blame for the children's refusal to visit. By way of contrast, the two children seem to hold plaintiff responsible for every problem that now confronts them.
The positions taken by the children at the hearing were, at times, internally contradictory and often at variance with both the facts and common sense. The protestations of defendant and the two children lack credibility. Clearly, it is defendant who has, by overt and covert means, influenced the children, resulting in the present estrangement between plaintiff and his three children.
Plaintiff has established his entitlement to relief pursuant to R. 1:10-3. In the context of this case, fashioning a remedy to address defendant's wrong doing is difficult, especially bearing in mind plaintiff's residence in Germany. Before determining the remedy, certain well established tenets of the law must be set forth. Thus, a custodial parent is charged with the duty of assisting the non-custodial parent to foster a relationship of love and affection with the children born of the marriage. Wilke v. Culp, 196 N.J. Super. 487, 496, 483 A.2d 420 (App. Div. 1984), certif. denied, 99 N.J. 243 (1984). The children have the right of access to their non-custodial parent, Matter of Baby M., 109 N.J. 396, 466, 537 A.2d 1227 (1988), and a right to the love, guidance and assistance that the non-custodial parent might provide. Daly v. Daly, 39 N.J. Super. 117, 123, 120 A.2d 510 (Cty. Ct. 1956), aff'd 21 N.J. 599, 123 A.2d 3 (1956). Courts have expressed that children have the right to understand that the non-custodial parent, although no longer residing with them, continues to have their best interests in mind. Beck v. Beck, 86 N.J. 480, 495, 432 A.2d 63 (1980).
Defendant, by her actions, has made such relationship of trust and confidence between plaintiff and his children most difficult. The relief granted plaintiff herein is designed to encourage defendant to take required and necessary steps to facilitate visitation between the father and his children. Thus, sanctions are imposed to demonstrate that recalcitrant behavior will not be tolerated. The remedies ordered herewith, inclusive of additional sanctions to be imposed, if defendant does not change her course, are crafted to make defendant understand that ...