On appeal from the Superior Court of New Jersey, Chancery Division, Somerset County, Docket No. FV-18-299-02.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Coburn and Wecker.
The principal issue on this appeal relates to the impact of a final restraining order on a father's request for the joint legal custody of his six-year old son.
Defendant appeals from provisions of an amended final restraining order (FRO) entered on June 14, 2004, which denied his request for "joint legal custody" of the parties' son, Shawn; awarded "plaintiff permanent sole legal and residential custody"; granted plaintiff authority to make all decisions concerning Shawn's medical and educational needs, but required plaintiff to "provide Defendant full and complete information about Shawn's school and extracurricular activities"; denied defendant's request to be joint custodian "for all accounts and economic holdings" for the benefit of Shawn; and denied defendant's request that he be able to consider Shawn as his dependent for tax purposes until plaintiff makes an annual income of $25,000 or more. The order also denied defendant's request to "amend the FRO to provide for telephone communication between the parties for purposes of discussing issues regarding Shawn," but did amend the FRO "to permit Defendant to have non-harassing communication with Plaintiff by telephone or e-mail concerning parenting issues regarding Shawn only." Parenting time and child support issues and scheduling details were also resolved on the parties' cross-motions, and defendant was granted liberal visitation during the week, every other weekend and on holidays.
After entry of the order under review, the parties entered a post-judgment agreement on some issues, thereby narrowing the dispute. Shawn was six years of age at the time of the hearing, and the amount of parenting time is not being challenged on the appeal.
The unmarried parties lived together until Shawn was three years old, and joint legal custody might well be appropriate if there were no FRO. However, the record reflects the entry of an FRO on August 23, 2001. It granted plaintiff "temporary child custody" of Shawn. The record also reflects that on February 15, 2002, defendant was placed on probation for three years for possession of a weapon for unlawful purposes and the petty disorderly persons offense of harassment, apparently stemming from the same incident, and that he "successfully completed the 'Options Anger Management Program' at Richard Hall Community Mental Health Center." As a result of the satisfaction of "[a]ll conditions of probation," including the payment "in full of all" financial assessments and remaining "arrest-free," defendant was discharged from probation on October 6, 2003.
Little else is known about the reasons for the FRO or the underlying events. Defendant provided no record of the prior proceedings in support of his application to obtain joint legal custody and more involvement in his son's life.*fn1 In his certification in support of his motion to amend the FRO, defendant certified:
1. I am the Defendant in the within matter and am making this Certification in support of my Motion to be awarded joint legal custody of my son, to recalculate my child support obligation to him, to have more liberal and overnight parenting-time with him, as well as other relief. By way of background, the Plaintiff and I were never married but have a son together, Shawn V. Terlaje, born April 25, 1998 who is the subject of this motion.
2. At the time of my son's birth, I was living with the Plaintiff and saw my son on a daily basis for the first three years of his life. Unfortunately, the Plaintiff and I broke up in 2001 and I moved out of our townhouse. Almost immediately, the Plaintiff's new boyfriend moved in with her and seemed to usurp the role of father in my son's life. I was extremely upset by this turn of events and I, unfortunately, let my emotions get the better of me. I had an altercation with the new boyfriend and, as a result, the Plaintiff got a Final Restraining Order against me and I was charged with aggravated Assault. I was given one year of Probation and was required to attend an Anger Management Program.
3. Although I successfully completed and passed the course, the Plaintiff has severely limited my contact with my son ever since that time and has even gone so far as to suggest that she be awarded sole legal and physical custody of my son. Despite that one incident almost three years ago, I have been a very loving, caring and concerned father to my son. I have tried on many occasions to negotiate more parenting-time with him, but the Plaintiff has denied me that right; she has steadfastly maintained the schedule set forth in the FRO which provides me with parenting-time on Sundays from 9:00 a.m. until 5:00 p.m. My son just turned 6 years old and I believe that it is in his best interests to spend more time with me and my family. I am, therefore, proposing parenting-time every other weekend from Friday afternoon until Sunday evening with a weeknight evening dinner visit on a ...