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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...