October 10, 2007
KIM INTERNOSCIA, PLAINTIFF-APPELLANT,
DAVID INTERNOSCIA, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FM-02-775-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2007
Before Judges Lintner and Sabatino.
Kim Internoscia ("the mother") appeals an October 20, 2006 order of the Family Part. The order denied the mother's post-judgment motion to transfer from David Internoscia ("the father") primary residential custody of the parties' twin daughters. The order also denied the mother's application to lift previously-imposed restraints on the daughters' contact with the mother's boyfriend. We affirm.
After an eight-year marriage, the parties divorced on August 29, 2005. They have two children, twin girls who were born in March 2002. Pursuant to the agreed-upon terms of the Final Judgment of Divorce ("FJD"), both parties would share legal custody of the twins, with the mother designated as the parent with primary residential custody. The father was allotted parenting time on alternate weekends and two other evenings per week, one of them a weekday overnight.
The FJD also specified that the mother's boyfriend, who she had begun seeing when the parties had separated, would not be allowed in the children's presence. That prohibition arose out of facts uncovered by a private investigator hired by the father during the pendency of the divorce, who discovered that the boyfriend had a suspended driver's license that would not be restored until the year 2012, multiple DUI convictions, and a conviction in North Carolina for the possession of drug paraphernalia.
Within days of the uncontested divorce proceeding, the mother embarked on a vacation with the twins and her boyfriend, in violation of the FJD. The father promptly sought an emergent transfer of primary custody of the twins. As a result of that application, the Family Part ordered on September 30, 2005, that the parties would have temporary shared physical custody of the twins, pending a court-ordered custody evaluation, drug testing, and a full hearing.
The mother's drug tests of September 2005 and November 2005 revealed amphetamines in her system, and the October 2005 test showed that her urine specimen had been diluted. She contended that the positive results were caused by diet pills she had been prescribed, and that she had stopped taking them in November 2005.
Between January and March of 2006, Dr. Judith Brown Greif, D.S.W., performed a court-ordered custody evaluation. The evaluation involved a series of interviews with the mother and father, both alone and accompanied by their children. Additionally, Dr. Greif interviewed the mother's boyfriend, the twins' daycare teachers, and the father's therapist.
In her twenty-page report to the court and the parties, Dr. Greif concluded in March 2006 that, although both parents were loving and attentive to the twins, the father demonstrated "a better ability to separate out his own needs from those of the children." Dr. Greif further opined:
While there is no question about [the mother's] attachment to the children, she has demonstrated poor judgment and a diminished understanding of the consequences of her actions. She has made [her boyfriend] a priority in her life and has disobeyed [c]court [o]rders and placed her access to the children at risk because of her desire to be with him.
As an example of the mother's "poor judgment," Dr. Greif cited her taking a family vacation with the girls and her boyfriend in disregard of the FJD. The expert also noted the mother had asked her boyfriend to drive her car, despite knowing that he had no license.
In her interview with Dr. Greif about these matters, the mother claimed that, at the time of her vacation, she did not understand the court's order restricting the twins' contact with her boyfriend. Moreover, she claimed that she did not think the father would enforce it. However, the mother also admitted to Dr. Greif that she had explained the prohibition to her boyfriend prior to their vacation. As to the incident of the boyfriend driving her car without a valid license, the mother contended that she had only asked him to move her car to a new parking spot around the corner from her house.
Following service of Dr. Greif's report, a custody hearing was scheduled for April 7, 2006. Prior to that scheduled hearing, counsel for the parties presented the court with a consent order, obviating the need for the hearing. The consent order incorporated Dr. Greif's recommendations. Pursuant to that consent order, dated April 7, 2006, the father assumed primary residential custody of the twins. The mother received parenting time with the girls every week from Thursday afternoon to Saturday evening and every Tuesday evening. The consent order also continued the restriction on the boyfriend, until "such time as he has a full drug and alcohol evaluation and documentation is provided with respect to the access/parenting plans he has with his own children."
This revised custody arrangement remained in place over the summer of 2006, with the exception that the mother, with the consent of the father, extended her Tuesday evening parenting time to an overnight stay. She continued dating the boyfriend. She also began seeing a therapist, pursuant to Dr. Greif's recommendation. That summer the mother moved to a duplex apartment about five blocks from the father's home, where she currently resides.
In October 2006, the mother moved to modify the April 2006 consent order. In her motion, the mother sought to transfer primary custody to her, as well as lift the boyfriend's contact restrictions. The mother asserted in her motion certification that the father was not fit to remain the primary residential caretaker, and it was in the children's best interests to reside instead with her.
More specifically, the mother accused the father of failing to clean his house and of allowing the children to live in "filthy conditions." In support of this claim, the mother presented the court with photographs that she had taken of the father's home while he was not there. She annotated these photographs with explanatory captions, such as "Disgusting frying pan", and "[Daughter] sleeping next to macaroni [and] cheese." Other photographs depicted the father's toilet bowl, dish drainer, and unwashed laundry.
The mother made several other allegations about the father's deficient parenting abilities. She claimed that he kept adult videotapes in his bedroom closet, where the children could have access to them. She also claimed that he had "many times" brought the twins to their daycare facility without their shoes on, and that they often were wearing the same clothes as the day before. The mother further contended that the girls had contracted a skin rash, diagnosed as "Fifth Disease," and yeast infections due to the unsanitary conditions at the father's house. Finally, the mother asserted that the father regularly requested her help in bathing the twins, and that she was generally acting as the primary caretaker despite not having primary residential custody.
In his reply certification opposing the motion, the father asserted that the mother had staged the photographs of his home in order to make him look like a bad caretaker. He informed the court that he has a cleaning service that comes regularly to his home. He also explained that the twins have several sets of duplicate outfits, and that he allows them to wear their favorites often. He related that he regularly bathes his children, takes them for haircuts, and stays home with them when they are ill. He also denied owning any adult videotapes.
As part of her motion for a modification of custody, the mother proffered a report from her personal therapist, E. Geraldine Jadick, M.S.W., L.C.S.W., who the mother started seeing in the summer of 2006. Prior to rendering her report, Jadick never met or spoke with the father. Nor had she ever observed him interact with the children. Nevertheless, Jadick opined that primary custody should be transferred from the father to the mother.
The motion judge gave no weight to Jadick's report. The judge noted that under the Rules of Court, see R. 5:3-3, as well as under principles within the mental health profession, Jadick, as the therapist of one parent, was not fit to act as a neutral evaluator in the parties' ongoing custody dispute. The judge also declined to treat Jadick as a mere "fact witness."
To support her renewed request to allow her boyfriend to be around the girls, the mother offered an uncertified letter written by one of the boyfriend's two ex-wives. The letter asserted that the boyfriend had a "very good relationship" with his son from that prior marriage. The mother also submitted to the court the results of a drug test that the boyfriend had taken in July 2006, testing negative for all substances. Additionally, the mother tendered a July 17, 2006 letter from John Laud, CASAC, of the Freedom Institute, where the boyfriend had undergone a substance evaluation. Confirming that the boyfriend had a "past history of alcohol dependence," the evaluation concluded that he "appears to be controlling his drinking and shows no signs of drug dependence." Laud acknowledged, however, that the test used by his office is a "proximal instrument and subject to client manipulation."
At the motion hearing addressing these issues on October 20, 2006, the court found that the mother had not carried her burden to make a prima facie showing of a substantial change in circumstances that could warrant a full plenary hearing. Specifically, the motion judge expressed doubts about the evidential value of the mother's photographs, finding that they were "stage[d]" in preparation of litigation and "clearly . . . tailored to advocate changes in circumstances." In that regard, the judge noted that he had twice offered to dispatch a probation officer to the father's house to investigate conditions there, but the mother refused those offers. The judge also took into account the shortness of the time interval between the April 2006 consent order, which had followed Dr. Greif's comprehensive evaluation of the parties' caretaking abilities and the children's best interests, and the mother's October 2006 motion. The judge also noted that the mother had not made any attempts prior to filing her motion to resolve her concerns amicably with the father.
The judge further noted shortcomings in the mother's proofs attempting to lift the contact restrictions with her boyfriend. First, the judge questioned the probative value of the substance evaluation obtained by the boyfriend. The judge noted that the evaluation was not done through a court-approved provider and also that, as Laud's letter expressly acknowledged, the tests were subject to manipulation. Second, the judge found it revealing that the boyfriend had not provided a letter of support from his other ex-wife, with whom he also had a child.
After considering the arguments of counsel, the motion judge denied both of the mother's requests for modification, dismissed the adult videotape issue as moot, and disposed of other issues not appealed here. The judge amplified his analysis in a written statement of reasons dated January 3, 2007.
On appeal, the mother argues that the motion judge substantively erred in not switching primary residential custody to her in October 2006, and in refusing to allow her boyfriend to have contact with the children. The mother also maintains that the judge procedurally erred in not conducting a plenary hearing on those issues. We are unpersuaded by these arguments, and affirm the Family Part's order, substantially for the reasons articulated in Judge Edward Torack's January 3, 2007 letter opinion. We add a few comments.
In order to modify a custody award, the moving party "must demonstrate changed circumstances that affect the welfare of the children." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). Although plenary hearings are often useful to resolve custody issues, see Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005), it is equally settled that a plenary hearing is not required unless the moving party clearly demonstrates that there is a genuine dispute of a material fact affecting the welfare of the children. Hand, supra, 391 N.J. Super. at 105; see also Lepis v. Lepis, 83 N.J. 139, 159 (1980) (applying same standard to modification of alimony). See also Barblock v. Barblock, 383 N.J. Super. 114, 123 (App. Div.) (declining to adopt a per se rule that plenary hearings are required in all contested matters involving custody and parenting time), certif. denied, 187 N.J. 81 (2006). In determining whether such a material factual dispute is present, the court must disregard conclusory allegations. Lepis, supra, 83 N.J. at 159.
In Hand, a recent case quite similar to the present one, the Family Part denied, without a plenary hearing, a mother's motion for a transfer in custody. The mother's motion submissions included allegations that the father had a drinking problem and had hit the children, and also included a letter of support from the mother's own therapist. The motion judge ruled that the mother's contentions of a material change in circumstances were insufficiently substantiated and lacked probative force. Consequently, her motion was denied. Hand, supra, 391 N.J. Super. at 112.
In affirming the motion judge's denial of a custody change in Hand, we noted the "special expertise in family matters" of Family Part judges, and expressed an unwillingness to second-guess their findings when they are supported by substantial credible evidence in the record. Id. at 111-12. See also Cesare v. Cesare, 154 N.J. 394, 412 (1998).
The conclusions of trial judges regarding child custody are "entitled to great weight and will not be lightly disturbed on appeal." DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976). This court will accept the factual findings and credibility assessments of the trial court as long as they are based on adequate, substantial and credible evidence. Cesare, supra, 154 N.J. at 412, Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).
Here, as Judge Torack's letter opinion soundly recognizes, the mother did not carry her burden of showing a prima facie case of changed circumstances. The mother needed to show that there were substantial and genuine issues of material fact that affected the welfare of her children, based on new evidence following the last custodial assessment by Dr. Greif and the parties' consensual agreement in April 2006.
The mother's allegations, in summary, were that the father was unfit to be the primary residential parent because his house was dirty, the children had health problems due to poor hygiene, he had trouble dressing the children for school, and he relied on the mother to help with the children because he could not handle the responsibility on his own. The mother's proofs on the first allegation largely consisted of photographs she took of the father's house when he was not at home. We have no reason to second-guess the judge's finding that the photographs were staged, and, in light of the father's certified explanations, insufficient to trigger the need for a hearing. Even if the mother's photographs accurately depict the state of the father's house, taken together these proofs do not amount to a substantial and genuine dispute of a material fact. At most, these photographs prove that the mother may be more adept at keeping house than the father, a fact that the father does not deny. This fact alone, however, does not lead to the conclusion that there is a deleterious change of circumstances.
We also will not overturn the judge's assessment that the mother had adduced inadequate proof that the children's skin rashes were caused by poor hygiene, or that the father had otherwise been neglectful in their care. Indeed, we share the judge's skepticism about the mother's allegations, in light of the contentious relationship of the parties and the mother's steadfast refusal to allow the father's premises to be inspected by neutral probation officers.
We also conclude that the motion judge properly discounted the significance of the hearsay statement by the children's daycare teacher to the mother's therapist regarding the father's alleged problems in getting his children's shoes on properly. As the judge correctly ruled, the mother's therapist was not a neutral evaluator, and it was improper for her as a professional to take sides in the custody dispute, whether denominated as an expert or as a "fact witness." See R. 5:3-3(b) ("Mental health experts who perform parenting/custody evaluations shall conduct strictly non-partisan evaluations . . . ."); see also Kinsella v. Kinsella, 150 N.J. 276, 328 (1997) (holding that assessments of the parties' mental health should be made by independent evaluators, rather than either party's therapist).
Notably absent from the mother's submissions was any independent evidence or assessment that the children are at risk of harm from the father's conduct. See Dorfman v. Dorfman, 315 N.J. Super. 511 (App. Div. 1998) (requiring a plenary hearing where there was a school report documenting the child's behavioral problems caused by the custody arrangement). The only independent assessment in this record, Dr. Greif's report of March 2006, concluded that the father was more than adequate to be the primary custodial parent. Furthermore, Dr. Greif's evaluation was undertaken at a time when the father already had custody of the children for half of each week. Dr. Greif's recommendation that the father have primary residential custody was not based on his ability to keep a better house than the mother, but rather was based on what Dr. Greif observed as the father's superior ability to "separate out his own needs from those of the children." There is nothing in the evidence presented by the mother in her motion papers in October 2006 demonstrating that this factor had materially changed.
Similarly, we sustain the judge's cautious determination that the mother's boyfriend, given his history of alcohol dependence and his successive DUI violations, was not yet fit to be in the presence of the children. The judge rightly was concerned about the reliability of the substance assessment and the lack of a supporting letter from one of his former spouses. These issues regarding the boyfriend's status, of course, are subject to the Family Part's ongoing supervision.
We therefore affirm the court's determination of October 20, 2006, without prejudice to the ability of either party to seek future modification from the Family Part upon demonstration of a material change in circumstances.
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