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Cain v. Cain

January 14, 2008

CHERI CAIN, PLAINTIFF-RESPONDENT,
v.
JEFFREY CAIN, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1182-03.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 18, 2007

Before Judges Skillman and LeWinn.

Defendant, an inmate at the Mid-State Correctional Facility serving a five-year term for a sexual assault upon a minor, appeals from a February 23, 2007 order of the Family Part that denied him visitation with his then eight-year-old daughter. The order from which this appeal has been taken is the fourth order denying defendant visitation with his daughter during his incarceration. The first order, entered on September 9, 2005, granted a motion by plaintiff, who is defendant's former wife and the mother of his child, to suspend defendant's visitation rights under the judgment of divorce during the period of his incarceration. This order stated:

Visitation shall not be permitted until such time as the Defendant/Husband establishes, pursuant to N.J.S.A. 9:2-4.1b, by clear and convincing evidence that it is in the best interest of the child that visitation be permitted during the Defendant/Husband's term of incarceration.

The second order, entered on September 28, 2006, denied defendant's motion for visitation and communication with his daughter. This order stated:

Defendant/Husband has not proved to the Court by clear and convincing evidence that visitation or communication while Defendant/Husband is incarcerated would be in the child's best interest.

The third order, entered on November 17, 2006, denied defendant's motion for reconsideration of the September 28, 2006 order and for supervised telephone contact and letter correspondence with his daughter. This order stated in pertinent part:

Defendant/Husband's motion for supervised telephone contact and letter correspondence with the Defendant/Husband and the parties' daughter is DENIED pending the receipt of a report from Dr. Street[e] and from [the daughter's] present counselor.

Dr. Street[e]'s report shall address whether or not, in Dr. Street[e]'s opinion, the progress of the Defendant/Husband is such that contact with his daughter is appropriate. Additionally, a report shall be submitted and shall address whether or not in the opinion of [the daughter's] counselor, what type of contact if any, would be appropriate between the Defendant and the child. [The daughter's] counselor should further advise the Court as to whether or not such contact would be in the best interest of the child. The reports from Dr. Street[e] and [the daughter's] counselor shall be provided to the Court no later than December 1, 2006. Based upon the reports, Defendant/Husband would be entitled to file a motion to address the contact/ visitation issue.

Following entry of this order, plaintiff submitted a report from her daughter's therapist, Rebecca Jacob, a licensed social worker, which states:

I have been working as [the daughter's] therapist since October 24, 2006. Therapy has been focused ...


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