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Corbett v. Corbett

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 3, 2009

SHAWN CORBETT, PLAINTIFF-APPELLANT,
v.
ROSA CORBETT, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FD-12-521-08D.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: February 11, 2009

Before Judges Axelrad and Lihotz.

Plaintiff, Shawn Corbett, who is incarcerated, appeals from the Family Part's December 5, 2007 order*fn1 denying his motion for visitation with his four-and-one-half-year-old twins without the benefit of a hearing. We affirm.

The following facts were set forth in plaintiff's verified complaint for visitation that he filed around November 30, 2007. He and defendant were married at the time his twin sons were born in July 2003. Defendant has not allowed him to see his sons since he was arrested on August 28, 2003.*fn2 Defendant is the custodial guardian of the children, residing in Piscataway. Plaintiff is incarcerated at South Woods State Prison in Bridgeton (Cumberland County). Plaintiff alleges he has "bonded" with his sons "prior to . . . and during his incarceration;" they know he is their father; he has maintained contact with them by letters and occasional phone calls when they are at his parents' house in Highland Park pursuant to court-ordered visitation subsequent to June 2005; and he has been "supportive" of them on birthdays and holidays such as Christmas and has managed to send them gifts, greeting cards and money with the assistance of his parents.

Plaintiff's complaint contained the further following allegations regarding his unsuccessful attempts at visitation:

FOURTH COUNT

3. Since Petitioner's incarceration the Defendant has made a diligent attempt to cease all communication with him.

4. Defendant had received a Restraining Order against the Petitioner, but [] advised his parents that she . . . withdrew the said Restraining Order, and would not allow the Petitioner to see his children until he was released from prison.

6. On or about August 2005, the Petitioner's mother-in-law and the Defendant advised the Petitioner's parents to instruct the Petitioner to place the Defendant and her mother on his visitor's list, when he was housed at Northern State Prison, located in Newark . . . to discuss visitation arrangements between him and his twin son[]s. However, the Defendant nor her mother [] made themselves available for a visit.

7. Petitioner's parents assured the Defendant that Visitation[]s with the Plaintiff-Petitioner and his twin sons would be conducted under safe and secure conditions.

8. Plaintiff-Petitioner's father and mother, are more than willing to bring his minor sons to visit him, while he is incarcerated.

9. Defendant has made it clear, that she has no desire to bring her twin sons to visit with the Petitioner.

l0. Defendant has left the Petitioner to solely depend on his parents for daily reports of his sons well being, immediately following their visits with the said minor children.

ll. Defendant is being very manipulative and not concerned about her sons best interest by preventing the Petitioner and his sons to further strengthen their bond by violating the Petitioner's rights to share visitations with his twin sons.

Plaintiff sought visitation privileges, including allowing his parents to bring the boys to visit him. He also attached a brief, reiterating many of the same allegations, and adding that he was sentenced to a custodial term not to exceed twelve years under the No Early Release Act, he has written several letters to defendant to no avail, defendant placed a "block" on her telephone after plaintiff made numerous attempts to contact the boys, and defendant advised his parents that she would allow him to see the boys when he was released from prison. Plaintiff argued that there was no evidence the prison visits would traumatize or cause physical or emotional harm to his sons. No opposition was filed.

On December 5, 2007, the court entered an order dismissing plaintiff's application without prejudice due to his current incarceration. This appeal ensued. On January 22, 2008, the court filed a supplemental statement of reasons, R. 2:5-1(b). Because of defendant's lack of opposition, it queried, though it did not make a finding, which it should have, whether she was served with the notice of motion in accordance with the Court Rules. As to the merits, the court found it would be inequitable to compel defendant to drive the four-year-old children the ninety minutes from Middlesex to Cumberland County for visitation, plaintiff failed to demonstrate it would be in the children's best interests to take the long trip and visit with their father in the penal facility, and a plenary hearing was not necessary to resolve the motion on the undisputed facts contained in plaintiff's submissions.

On appeal, plaintiff argues the court erred in dismissing his application for visitation without a plenary hearing and by relying too heavily on his incarceration. Plaintiff also emphasizes there is nothing in the record to suggest that defendant would have to make the drive, noting his numerous representations in the complaint and brief that his parents would be willing to transport the boys to the prison. He seeks reversal of the trial court's order and a remand for a plenary hearing.

Though indulgent of plaintiff's professed limitations as a pro se litigant, we are not persuaded the record presented by plaintiff merits a plenary hearing, either in person or by closed circuit television. The substantive question is whether the welfare of the children will be promoted or disserved by visitation with their father under all the circumstances, dictated exclusively by concern for the children's best interests. Fusco v. Fusco, 186 N.J. Super. 321, 326 (App. Div. 1982). We recognize that one's status as a prisoner does not automatically sever a parent's right of visitation, see ibid., but the burden is on the movant to present a prima facie case that the welfare and best interests of his twins will be promoted by the visitation. If there are then conflicting contentions and opinions of lay and expert affiants, a plenary hearing would be warranted. See id. at 327, 329.

Plaintiff has not met his burden to justify why his kindergarten-age boys should travel about ninety minutes each way to the prison and whether they can handle the environment. His submissions contain generalities about his relationship and "bond" with the twins, with whom he apparently only resided for the first month of their lives, with no specific information or evidence as to the extent of his communication with them from his arrest in August 2003. Nor does he provide specific information regarding his relationship with defendant, particularly including the basis and status of the restraining order, which may affect phone communication with his sons. Plaintiff's submission is also devoid of the specifics of his crime and any disciplinary action during incarceration, or psychiatric/psychological reports or evaluations that will provide insight into his personality.*fn3 Furthermore, although plaintiff submits that visitation will be conducted under "safe and secure conditions" and will not traumatize his young sons, he provides no information about South Woods State Prison and its procedures for visitation. In addition, plaintiff's offer of his parents to provide the transportation for the visits to the prison, a factor that should have been noted by the motion judge, should still have been corroborated by his parents' affidavit.

Plaintiff did not provide sufficient information for the trial court to perform the sensitive evaluation and balancing of the personal and family dynamics and motivations, the logistics of transportation, and probable problems attendant upon the environmental constraints of prison visits to determine whether it was in the twins' best interests to visit plaintiff at South Woods State Prison. Accordingly, we affirm the court's order dismissing plaintiff's application for visitation. Plaintiff may, of course, re-file a motion with the appropriate proofs.

Affirmed.


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