February 4, 2008
MARIGO CHANTZIS, PLAINTIFF-RESPONDENT,
CONSTANTINOS CHANTZIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, FM-20-16-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 11, 2007
Before Judges Winkelstein and LeWinn.
The parties were married in 1989, and were divorced by a dual final judgment entered on March 14, 2000 in Bergen County. They are the parents of twin sons born May 28, 1991. Pursuant to the property settlement agreement (PSA) incorporated into their divorce judgment, the parties were to share joint legal custody of the children, with plaintiff designated the parent of primary residence, and defendant to have the children one overnight every weekend with additional overnights possible depending on how far defendant lived from plaintiff's residence. The parties shared school breaks and alternated holidays. Summers were to be shared "in a fair manner to be agreed upon[.]"
Between January 2002 and March 2007, both parties filed numerous motions regarding defendant's parenting time with the children. Those motions resulted in a series of orders essentially suspending defendant's parenting time as of July 2005, then requiring him to attend therapy as a pre-condition to reinstating parenting time and, ultimately, continuing suspension of defendant's parenting time indefinitely and denying a plenary hearing.
For the reasons set forth below, we find merit in defendant's contention that the orders suspending his parenting time were improperly entered without a plenary hearing. Therefore, we reverse and remand this matter to the Family Part to hold a plenary hearing at which both parties shall have the right to present all relevant evidence, both lay and expert, bearing upon the issue of defendant's relationship with his children.
A brief review of the record pertinent to our decision follows.
As early as January 2002, plaintiff instituted proceedings affecting defendant's parenting time, resulting in an order of the Family Part in Bergen County, entered on January 20, 2002, requiring the parties to attend therapeutic family mediation with Dr. James Battaglia, authorizing plaintiff to select a counselor for the children, ordering defendant to refrain from questioning the children about their therapy, and permitting plaintiff to make the day-to-day decisions concerning the children without defendant's prior consent or approval. On February 4, 2003, the parties entered into a consent order vacating the January 20, 2002, order.
On December 10, 2004, the court appointed Dr. Edwin Rosenberg as Parenting Coordinator, and ordered that, pending the recommendation of that Parenting Coordinator, the parties were to follow the parenting time schedule in the PSA. On April 22, 2005, the court granted defendant's motion to change venue to Union County, and entered a separate order changing the Parenting Coordinator appointment to Linda Schofel, an attorney in Roseland, NJ.
On July 25, 2005, a judge of the Family Part in Union County heard plaintiff's order to show cause to suspend defendant's parenting time, based upon a letter submitted by the Parenting Coordinator, Schofel. After hearing oral argument from plaintiff's attorney and defendant, appearing pro se, the judge ordered defendant's parenting time suspended pending a return date of August 9, on which date defendant was to show cause why suspension of his parenting time should not be continued pending an evaluation and recommendations by the children's therapist and why he should not be required to submit to a psychological evaluation by a court-appointed professional at his own expense; the judge also appointed Dr. Provenzano Schaub for "crisis intervention and therapy if necessary."
Defendant filed a cross-motion on August 2, 2005, to reinstate joint legal custody and to implement a shared parenting time schedule whereby he would have the children four nights in each week and plaintiff would have them three nights. Defendant sought to replace Schofel as Parenting Coordinator, to find plaintiff in violation of litigant's rights for withholding parenting time, and to require plaintiff to submit to a psychological evaluation. Defendant also requested the court to order a custody evaluation.
On August 9, 2005, both parties appeared with counsel; Schofel was also present. The court engaged in extensive colloquy with counsel and permitted Schofel to participate without being sworn. In the course of that colloquy, counsel for both parties requested that the judge interview the children, which the judge agreed to do "eventually." Also during that colloquy, the judge stated to defendant:
Mr. Chantzis, you lack a tremendous amount of insight . . . and I'm sure I could say some things about Miss Chantzis if I had to, but I don't choose to. The last letter to your children that was attached to Miss Schofel's certification articulated to me that you lack insight into the damage that you are creating with your children. And you sent it. You know what I'm talking about, and you are putting excruciating pressure on your two children.
I don't know how a father who professes to love his children could send a letter like that, and I can ascribe it maybe to your motivation with respect to your feelings about your ex-wife, or I could ascribe it to the fact that perhaps you lack the insight into the psychological activity in children's mind[s] when parties are getting divorced.
Following additional colloquy, the judge opined that the children love and want to have a relationship with defendant. However, the judge expressed concern that "Mr. Chantzis won't know how to use that time and he will pound on them emotionally, psychologically, orally . . . . I cannot trust him to parent his children without getting into bad mouthing, to use the colloquial phrase, the mother, [and] Miss Schofel[.]"
The only testimony adduced from the parties on August 9, 2005 was very brief evidence from plaintiff as to how often she had taken the children to see Dr. Schaub, the crisis intervention appointee, and defendant's equally brief testimony as to his limited ability to speak to the children by telephone since July 18, 2005.*fn1
The court's order of August 9, 2005, provided as follows:
(1) Schofel was relieved as Parenting Coordinator; (2) Salvatore Simeone, Esq., was appointed as guardian ad litem for the children; (3) Dr. Morton Friedman was appointed to conduct a psychiatric evaluation of defendant; (4) Dr. Schaub was to continue crisis intervention; (5) Dr. David Brodzinsky was appointed to conduct a custodial evaluation; and (6) suspension of defendant's parenting time was continued pending further order of the court with defendant to have only email contact with the children in the interim.
The court held a status conference on August 23, 2005, at which both parties were sworn and questioned by the judge.
Simeone was also present and participated, unsworn, in colloquy between court and counsel and in the court's questioning of defendant. The order resulting from that status conference provided that: (1) the following provisions of the August 9 order were suspended: (a) appointing Dr. Friedman to conduct a psychiatric evaluation of defendant; (b) appointing Dr. Brodzinsky to conduct a custody evaluation; and (c) the discovery scheduled in anticipation of a custody hearing; (2) Simeone was continued as guardian ad litem and was required to file a supplemental report by September 30, 2005; (3) Dr. Schaub was continued as the children's crisis intervention therapist; (4) defendant's parenting time was reinstated according to the following schedule: through September 2005, every weekend overnight Saturday to Sunday, and thereafter, every other weekend from Friday to Sunday, with midweek parenting time suspended pending further order of the court; (5) defendant was to attend therapy with a therapist recommended by Simeone; and (6) a status conference was to be scheduled in "October or November 2005."
On November 9, 2005, the trial judge held a status conference at which both parties were sworn. When defendant requested permission to speak, the judge engaged him in discussion of his parenting style and then permitted him to speak at length about his dissatisfaction with Schofel and Simeone. Plaintiff did not testify. The court addressed Simeone's recent letter report, and allowed the guardian ad litem to address the court in colloquy and opine that defendant's parenting time should be suspended because it would be harmful to the children.
Defendant, through counsel, attempted to question Simeone as to whether "any mental health professional in this case . . . has rendered a report that said if the children and the father have contact that it would create an imminent threat [of] . . . emotional harm of the children?" The judge responded that Simeone did not have to answer that question because the issue was to be addressed at a plenary hearing. The judge stated: "[W]e're on our way to a plenary hearing as to whether or not Mr. Chantzis's parenting time shall be suspended and I want to get that hearing as quickly as possible, and these orders are temporary until we get to the hearing[.]"
As the judge was rendering his decision that included the ongoing suspension of defendant's parenting time pending the plenary hearing, defendant advised the court that "unless he gets parenting time and family therapy today, he does not want a plenary hearing." The court responded: "Okay. Perfectly fine if that's what he wants." The judge found that defendant had waived his right to have an expert and a hearing. He then noted: "Mr. Chantzis is agitated. Mr. Chantzis is upset, but he has directed his attorney to cease and desist from all applications for a plenary hearing."
The judge thereupon entered an order: (1) suspending defendant's parenting time and prohibiting him from having any type of contact with the children, pending any further order of the court; (2) continuing Simeone as guardian ad litem and Dr. Schaub as crisis intervention therapist; (3) noting that defendant "has waived his right to a plenary hearing, with prejudice"; (4) denying defendant's request for family therapy; (5) scheduling a future date for consideration of child support issues; and (6) providing that "this is a final Order as to Parenting Time and the Court reserves the right to supplement its findings."
In October 2006, defendant filed a motion seeking numerous forms of relief, including the resumption of parenting time and the appointment of a reunification therapist and a psychologist to evaluate the children and both parties for the purpose of recommending a shared parenting plan. Plaintiff filed a cross-motion seeking to hold defendant in violation of the court's order of August 24, 2005, for failure to attend therapy. On November 16, 2006, another judge of the Family Part heard argument by counsel and then entered an order continuing the suspension of defendant's parenting time, ordering him to attend ten weeks of individual therapy with a therapist agreed upon by counsel, and denying defendant's request to remove Simeone as guardian ad litem.
In December 2006, defendant again moved for numerous forms of relief, including reconsideration of Simeone's removal, implementation of a parenting plan, and to have the court interview the children. On January 18, 2007, after hearing argument by plaintiff's counsel and defendant appearing pro se, the court entered an order denying defendant's motion in its entirety.
In February 2007, defendant filed another motion seeking reconsideration and other forms of relief related to resumption of parenting time and psychological evaluations of the parties and the children. On March 23, 2007, again after hearing arguments by plaintiff's counsel and defendant, a third judge of the Family Part entered an order denying this motion in its entirety.
The net effect of these numerous court proceedings is that, except for a two-and-a-half-month period from August 23 to November 9, 2005, defendant's parenting time with his sons has been suspended since July 25, 2005. In fact, since the order of November 9, 2005, defendant has been prohibited from having any form of contact with his children.
All of the orders emanated from court proceedings that, at various times, consisted solely of arguments by counsel, unsworn statements from the Parenting Coordinator, the guardian ad litem, and the children's therapist (who never met defendant), and brief testimony from the parties. Despite stated intentions to do so, no trial judge ever appointed a custody evaluator, held a plenary hearing or interviewed the children.
We have long recognized and upheld the fundamental proposition that "the law favors visitation and protects against the thwarting of effective visitation rights." Wilke v. Culp, 196 N.J. Super. 487, 496 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985). Parental rights to custody and visitation are held "in high esteem" and are guaranteed judicial protection. Ibid. Our courts are committed to the principle that "children of separated parents should be imbued with love and respect for both parents, and where children are in [the] custody of one parent, the court should endeavor to effect this facet of the children's welfare by conferring reasonable rights of visitation on the other parent." Ibid.
Here, as in Wilke, supra, the effect of the judges' rulings denying defendant visitation and all other contact with his sons "is to cut off forever the child[ren] from [their] natural parent." Id. at 501. Here also, as in Wilke, there was "no plenary hearing to develop the facts," and the orders were based "almost exclusively on . . . conflicting affidavits." Ibid.
Where, as here, allegations arise that a parent's relationship with his children may cause them emotional or physical harm, the right to visitation may be restricted or, where appropriate, terminated. The principal "polestar" guiding such decisions is "the best interests of the child[.]" Beck v. Beck, 86 N.J. 480, 498-99 (1981).
In Wilke, supra, a father sought parenting time with his then-fifteen-year-old son whom he had not seen in six years. 196 N.J. Super. at 495. The trial judge denied visitation based on his in camera interview with the teenager and the oral argument of counsel. Ibid. In reversing and remanding for a plenary hearing, we held that the trial judge should have held a plenary hearing with testimony of the parties and "any qualified psychologist or expert proffered by the parties or appointed by the court." Id. at 504. We emphatically held that "the father's visitation rights should not have been denied unless it clearly and convincingly appeared that this was one of those exceptional cases where visitation would have caused physical or emotional harm to the children, or where it was demonstrated that the non-custodial parent was unfit." Id. at 503. Defendant here is entitled to nothing less.
Where the parties' certifications are as conflicting as in this case, the failure to hold a plenary hearing and interview the children was improper. The orders under review were "based on [the court's] evaluation of conflicting affidavits and adoption of the assertions of one party over the other without the benefit of a plenary hearing." Mackowski v. Mackowski, 317 N.J. Super. 8, 11 (App. Div. 1998) Nor did the input from the Parenting Coordinator, guardian ad litem or children's therapist, cure the impropriety at issue here. As noted earlier, none of those individuals was ever sworn as a witness or subject to cross-examination. Defendant's effort to pose essentially hypothetical questions to Simeone at the November 9, 2005 proceeding was controlled and limited by the trial judge.
Parenting time decisions made on the basis of "self-serving certifications by the parties" and unsworn statements of third parties are "made without an evidential basis, without examination and cross-examination of lay and expert witnesses, and without a statement of reasons [and are] untenable in the extreme." Fusco v. Fusco, 186 N.J. Super. 321, 327 (App. Div. 1982).
The November 9, 2005, order indefinitely suspending defendant's parenting time and his ability to have any contact with his children, also states that defendant "waived his right to a plenary hearing, with prejudice." (Emphasis added). However, as we have long recognized, even if a party waives a plenary hearing, "the matter of visitation is so important . . . that if a plenary hearing will better enable a court to fashion a plan of visitation more commensurate with [the children]'s welfare, nonetheless it should require it." Wagner v. Wagner, 165 N.J. Super. 553, 555 (App. Div. 1979), certif. denied, 85 N.J. 93 (1980).
Rule 5:8-6 requires a plenary hearing to be conducted where "the custody of children is a genuine and substantial issue." In Wilke, supra, we expressly construed our rules relating to the custodial status of minors to include visitation. 196 N.J. Super. at 503. Therefore, we find the same procedural requirements appertain here and mandate a plenary hearing on defendant's parenting time. As part of such a hearing, "the court may on its own motion or at the request of a litigant conduct an in camera interview with the child(ren)." R. 5:8-6. As noted, both parties requested one judge to interview the children, to which that judge agreed.
Of particular pertinence to this case is our recommendation to the trial judge in Wilke, supra, to "explore, among other things, whether [defendant's] lack of past visitation and [the children's] attitude are attributable to the child[ren]'s mother . . . . If necessary, appropriate measures to provide counseling services to the parties [and] the child[ren] . . . may be warranted." 196 N.J. Super. at 503. Such measures may well be appropriate here, given the inordinate length of defendant's absence from his children's lives.
Based on the foregoing, we reverse and remand this matter to the Family Part to schedule a plenary hearing to be held within forty-five days. We do not retain jurisdiction.