On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FD-07-1738-06. Leticia Neal, appellant pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2008
Before Judges Wefing and Parker.
Plaintiff Leticia Neal appeals from an order entered on March 23, 2007 allowing defendant to have unsupervised overnight visitation with the parties' four-year-old child from Tuesdays at 3:30 p.m. through Wednesdays at 7:30 p.m.
In this unopposed appeal, plaintiff pro se argues that the trial court (1) erred in granting unsupervised overnight visitation; (2) erred in not requiring defendant to provide medical proof of his mental fitness; (3) did not make a well-formed custody and parenting decision in the absence of a risk assessment and psychological evaluation of defendant; and (4) made conclusions not based on fairness or careful analysis of the law and evidence.
The parties have a long history of custody and visitation disputes. Apparently, defendant has been diagnosed with bipolar and attention deficit disorders. Mathias Hagovsky, Ph.D., the psychologist appointed by the court to do a "best interests" evaluation, stated that as of November 2006, Dr. Allison Weiner reported "that when she last saw Mr. Corby he was cooperative and compliant with his appointments and seemed well managed for his bi-polar disorder and attention deficit disorder on the medication she had prescribed." According to Dr. Hagovsky, Dr. Weiner had not seen Mr. Corby since November 2006, but she was "informed by him that he currently receives his medication from his general medical doctor, and is in the process of arranging therapy with a nurse practitioner."
Plaintiff has provided us with seven transcripts from October 17, 2005 through March 23, 2007 and more than 150 pages of documents relating to her custody and visitation dispute with defendant. She represents that defendant has been charged with sexual assault but has presented no proof of that claim. She has provided us with copies of domestic violence restraining orders, none of which indicate that defendant was charged with sexual assault.*fn1 Plaintiff further represents that defendant administratively dismissed the sexual assault charge, but again provides no proof of that representation. We note, however, that no person charged with a criminal offense can dismiss the charge against him or herself. A prosecutor may administratively dismiss a complaint before presenting it to a grand jury and must report the basis for the dismissal to the Assignment Judge.
R. 3:25-1(a). After indictment, a criminal charge may only be dismissed by a judge. R. 3:25-1(b). Other than plaintiff's bare representation, we have no documentation demonstrating that such a charge was ever filed against defendant or was dismissed.
In the March 23, 2007 transcript reflecting the argument and decision on the order at issue here, the trial judge spoke at length on the importance of the parties' consideration of the child's best interests. From the judge's remarks, it is obvious that plaintiff has continually fought defendant over his relationship with the child. It further appears that the trial judge has made considerable efforts to have the parties accommodate a reasonable visitation schedule.
In a letter to the trial court dated March 6, 2007, Dr. Hagovsky reported that defendant had not yet participated in the evaluation process and, as a result, he could not form an opinion or make any recommendations with respect to unsupervised visitation. Defendant's failure to participate in the evaluation process and Dr. Weiner's report that she had not seen defendant since late November 2006, leaves open the question of whether defendant remains cooperative and compliant with his treatment and medication. The record does not include any substantive information regarding defendant's mental health. We, therefore, remand this matter to the trial court for reconsideration of the March 23, 2007 order allowing unsupervised overnight visitation in the absence of a current evaluation indicating whether defendant continues to be cooperative and compliant with his treatment and medication. Moreover, defendant's participation in Dr. Hagovsky's evaluation should be a condition of any unsupervised visitation.
Accordingly, we reverse and remand for the trial court to reconsider the question of unsupervised overnight visitation pending receipt of a current evaluation of defendant's mental health and Dr. Hagovsky's report. The trial court shall schedule a hearing to reconsider the March 23, 2007 order within thirty days of receipt of this order.
During the pendency of this appeal, we received a letter from plaintiff dated March 14, 2008 stating that on the same date, the trial court modified the March 23, 2007 order which is the subject of this appeal. Rule 2:9-1 vests jurisdiction of a matter in the Appellate Division after a notice of appeal has been filed. Thereafter, the trial court lacks jurisdiction to take any action in the matter other than "to enforce judgments and orders pursuant to R. 1:10" unless we remand the matter to the trial court for further proceedings. R. 2:9-1(a) and (b). An order entered by the trial court while an appeal is pending is a nullity for lack of jurisdiction. We note, however, that the order modified was entered in the domestic violence matter under the FO docket number. This is an appeal of an order entered in the FD docket number. Consequently, there is ...