On appeal from Superior Court of New Jersey, Chancery Division - Family Part, Essex County, No. FD-07-520-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 11, 2007
Before Judges Wefing, R. B. Coleman, and Lyons.
Plaintiff appeals from a trial court order denying his motion for reconsideration. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.
Plaintiff and defendant are the father and mother, respectively, of a nine-year-old daughter who is the subject of this litigation. Although the parties were never married, they had a dating relationship of many years. They did not formally live together, but plaintiff stayed with defendant for several months after their daughter was born to assist in her care. Defendant has a child by another relationship, a son now more than twenty years old. At the time of trial, he was a resident student at Kean University, returning to his mother's house during school vacations. Plaintiff has a child from another relationship as well, a daughter in her mid-twenties who lives in Baltimore.
From the time their daughter was born, she resided with her mother and half-brother until shortly before this litigation commenced, at which point she was seven years old. During those seven years, the parties had an informal understanding on custody. The child lived primarily with her mother, but plaintiff saw her almost daily. She would spend overnights with him and go on trips with him as well. When the child started school, plaintiff, who was a teacher, would pick her up from school and take her to defendant's home where he would see to her homework and prepare dinner for the three of them.
Despite the long-standing nature of the relationship between plaintiff and defendant, plaintiff and defendant's son did not develop a close relationship with each other. As the boy entered his teens, their relationship became strained. Eventually, plaintiff decided that the young man was not a positive influence over his daughter. His view was triggered by several episodes, in particular, his belief that the young man had abused the young girl's pet cat. The parties had, moreover, begun to quarrel between themselves about visitation and pick-up times. At one point, the child, who had been visiting with her father, did not want to return to her mother's house and the police were summoned.
Plaintiff's concerns with regard to defendant's older son led him to file a pro se complaint on July 5, 2005, seeking sole custody of the girl. The trial court entered an order on July 21, 2005, granting temporary physical custody of the girl to defendant but joint legal custody to both and directing that a best interests evaluation be conducted. That order also set out a parenting schedule. It provided that until September 2, the child would spend Monday through Friday with plaintiff and weekends with defendant. Beginning September 3, the child would reside with defendant but be with plaintiff every day after school. The order also provided that commencing September 3, the parties would alternate weekends.
The matter proceeded to trial.*fn1 That trial was unfortunately protracted. The primary reason for the delay was a report by defendant's attorney to the trial court that she had received a telephone call from an individual who identified herself as a therapist treating plaintiff's older daughter. According to the attorney, the therapist stated that based upon her conversations with plaintiff's daughter, she was concerned about the possibility that plaintiff was sexually abusing his young daughter. The attorney advised the court that her client had taken the child to a pediatrician and a gynecologist, who found no physical evidence of abuse and that, based upon the therapist's recommendation, had engaged the services of a psychologist for the child.
Although no corroboration was ever supplied for this hearsay accusation, the trial court immediately ordered a complete cessation of plaintiff's visitation and ordered the Division of Youth and Family Services ("DYFS") to conduct an investigation. See Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005) (noting that "an unsworn uncross-examined letter [is not] a basis for changing custody"). That DYFS investigation consumed several months. After DYFS could find no support for the accusation, the trial court permitted a resumption of visitation but directed that it had to be supervised. At the close of the proceedings, the trial court rendered an oral opinion in which it stated its reasons for denying plaintiff's application for sole custody. It then proceeded to add that it had concluded plaintiff "shows an extreme lack of judgment around children" and awarded sole physical and legal custody to defendant, relief which she had never requested. The trial court directed that defendant was "to make both the day-to-day decisions as well as the major decisions about this child."
The trial court also directed that any motion by plaintiff for a change in custody would have to be supported by a psychological evaluation. Plaintiff filed a motion for reconsideration, which the trial court denied. Plaintiff included in his moving papers a psychological evaluation prepared by Andrew P. Brown, Ph.D., and submitted on the letterhead of Neurobehavior Consultants, Inc. The trial court declined to consider the report, however, because it did not state that Dr. Brown was a licensed psychologist. Three days later plaintiff sent to the court a copy of Dr. Brown's current licensure from the State of New Jersey as a practicing psychologist, but this did not produce any modification. This appeal followed.
We note at the outset the limited scope of our review. The general rule is that findings by a trial court are binding on appeal when supported by adequate, substantial, credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). This principle is particularly applicable in a matter such as this. Recognizing "the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. This court has noted that "the opinion of the trial judge in child custody matters is given great weight on appeal." Terry v. Terry, 270 N.J. Super. 105, 118 (App. Div. 1994).
"The court has broad discretion in dealing with the custody of a child, being always aware that the welfare and happiness (best interests) of the child is the controlling consideration." Mayer v. ...