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D.A. v. S.J.-A.

August 14, 2007

D.A.*FN1 , PLAINTIFF-RESPONDENT,
v.
S.J.-A., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, FM-01-582-05B.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 7, 2007

Before Judges Sabatino and Baxter.

Defendant S.J.-A. ("the mother") appeals an October 18, 2006 order of the Family Part allowing plaintiff D.A. ("the father") to relocate two of the parties' four adopted minor children with him to Florida. The order also established terms for the mother to have pre-arranged daily telephone and Internet contact with the relocated children, and to visit with them during the summer months and holiday vacations. The order was issued after a plenary hearing in which both parents were represented by counsel.

Because we are satisfied that the relocation order comports with applicable law, including the standards of Baures v. Lewis, 167 N.J. 91 (2001), we affirm.

I.

Presently divorced from one another, the parties have had to deal with quite difficult circumstances concerning the behavior of, and the relationships among, their adopted children. Here are the pertinent facts that emerged at the plenary hearing.

The parties began dating after they met in college in 1989. They were married on June 7, 1991 and lived in Las Vegas, Nevada. While living in Las Vegas, the parties decided to become foster parents. They began to adopt children through the "foster gift system," adding five children in succession to their household in less than a year.

The parties began caring for their first foster child, a daughter Alice*fn2 , in February 2000. The mother worked at a pediatric hospital at the time. Shortly thereafter in April 2000, the parties brought into their family a foster son, Sam, born October 16, 1993. After a sexual encounter occurred between Sam and Alice, Alice was permanently removed from the parties' home.*fn3

In May 2000 the family added a second foster son, Walter, a few weeks after he was born on April 3, 2000 and had been taken to a shelter. The parties next accepted a daughter, Lois, born July 3, 1997, in November 2000. Finally, in January 2001 the parties added a third foster son, David, who was born on January 14, 1999.

The adopted children were all "drug babies." David, Lois, and Sam had lived in several different homes prior to being adopted by the parties. The two older children, Sam and Lois, are biological siblings, as are the two younger children, David and Walter. However, Sam and Lois are not biologically related to David and Walter. All four adoptions were finalized in 2002.

While in Las Vegas, the parties discovered that Sam had acted out sexually with other children, including Lois. Sam was treated for his aberrant behavior.*fn4 The parties then decided to move to New Jersey with all four children. The father's parents in New Jersey, Andrew ("Andy") A. and Carlene ("Connie") A., provided the father with a job in Andy's business and also purchased a house for the parties in Somers Point. The parties and the four children moved to New Jersey in 2002.

The Nevada Division of Youth and Family Services had recommended that Sam continue in treatment for his sexual misbehavior. However, upon moving to New Jersey, the parties decided that Sam would not continue treatment. Consequently, as the father acknowledged at the hearing in this case, "[n]o extensi[ve] precautions" were taken in their New Jersey home to protect the other children from Sam.

In April or May 2004, while living in New Jersey, the mother took four of the father's painkiller medications (Xanax),*fn5 which was an overdose. She then struck Sam, for reasons not clear from the record, and called a suicide hotline.*fn6 The situation at home then seemingly stabilized for awhile.

On June 8, 2004, however, the parties discovered that Sam had been sneaking into Lois's room at night and having sexual contact with her. The father did not himself observe the sexual contact. The mother, however, who was having trouble sleeping at night, caught Sam and Lois going into each other's rooms. She then discovered "[Sam] in his room sitting on his bed in a strange position with his penis out and erect." The next morning, the mother questioned Sam and Lois. After initially denying anything untoward had happened, both children eventually confessed that there had been sexual contact.

After seeking treatment for Sam, the parties decided to go to the local police department to press charges against Sam, who they perceived as the initiator. The mother took Sam to the police department on June 11, 2004, and he was subsequently charged as a juvenile with sexual assault. He was removed from the parties' home and placed in a facility for children.

The following day, June 12, 2004, the mother asked Lois if the father had ever touched her sexually, and she allegedly responded that he did. The mother consequently took Lois to the police station that same day, where she was interviewed by a detective. After the interview concluded, the detective informed the mother that Lois had said to him that nothing sexual had ever happened between Lois and the father.*fn7 That night, the mother arranged for her brother to pick Lois up to stay at his house, while the parties took David and Walter to a movie. At or about this time, the mother told Lois that she no longer needed to call the father her "dad."

Two days later, on June 14, 2004, the mother sought and obtained a temporary restraining order (TRO) against the father, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. As a result of that TRO, the father was removed from the parties' home and the mother was given interim custody of Lois, David, and Walter. The father temporarily was not allowed to have any contact with any of the children.

On the return date, July 22, 2004, the Family Part dismissed the TRO for lack of substantiation. Because issues involving the children still persisted, the judge presiding over that matter suggested to the mother that she might wish to apply for custody of the children and for child support. Consequently, the mother pursued such relief and the Family Part entered an order that day granting the mother residential custody of Lois, David, and Walter.

Later that same day, a case worker from the Division of Youth and Family Services (DYFS) and two State Police officers confronted the father at his parents' home in Margate. The DYFS case worker allegedly stated that the father had to leave the premises or the case worker would remove the father's adopted sister, Roxanne*fn8 , then eleven years old, from the house. Roxanne was sent to stay with a friend that night, and the next day the father moved into a friend's house in Ventnor.

Around this time, the mother had the opportunity to move to upstate New York with some friends. According to her testimony, she wanted to get a "fresh start for the kids" and to get them away from the father. She therefore filed a motion in the Family Part, requesting that the children be allowed to move with her out of state. The Family Part entered an order six days later, carrying the application for hearing on a future date, at which time a DYFS representative was ordered to be present.

In the intervening days, the mother suffered a mental breakdown upon being evicted from the marital residence by the father's parents for not paying rent. According to the mother, she was "devastated" by everything that had happened, and she decided on August 11, 2004 to check into the psychiatric ward of a local hospital. She dropped ...


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