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D. W. v. P. W.

March 10, 2009

D. W.,*FN1 PLAINTIFF-RESPONDENT,
v.
P. W., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-603-01.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted*fn2 February 9, 2009

Before Judges R. B. Coleman, Sabatino and Simonelli.

Defendant, P.W. (the "mother"), appeals an order of the Family Part dated June 12, 2008, awarding sole physical and legal custody of her two minor children ("Abigail" and "Neal") to plaintiff, her ex-husband, D.W. (the "father"). The order followed a plenary hearing, at which the court heard testimony from the parties as well as from a court-appointed psychologist. The psychologist, whose testimony was not rebutted by another expert, had recommended the custody change based on extensive evaluations of the children and their parents. His independent review was prompted by reports that the mother had engaged in aberrant and abusive behavior harmful to the children.

The mother contends that the Family Part erred in removing the children, who had primarily resided with her after the parties' divorce, from her custody. More specifically, she argues that the court should have interviewed the children in chambers and that its decision was tainted by hearsay proofs about her alleged misconduct. The mother further maintains that the evidence supporting a custody transfer is particularly insufficient as to Neal, with whom she now has only biweekly parenting time.

In addition, the mother criticizes the court's order insofar as it gives Abigail, who is nearly age sixteen, the option to cancel parenting time with her mother when she would prefer not to see her. The mother also objects to the court requiring her to accommodate the children's extracurricular activities during her scheduled parenting time.

We recite, in brief, the pertinent background. The parties were divorced in 2003. At that time, a court-appointed psychologist, Gerald Cooke, Ph.D, performed a custody evaluation. Dr. Cooke recommended that the mother retain primary custody of Abigail and Neal. He also recommended that the father, who had moved to an adjacent county, be granted substantial parenting time. The court adopted those recommendations in the terms of the divorce judgment.

Following entry of the divorce judgment, the father appealed the trial court's award of permanent alimony to the mother. The appeal did not concern custody issues. We vacated the alimony ruling and remanded for further proceedings. D.W. v. P.W., No. A-1449-03 (App. Div. July 7, 2005). On remand, the parties consented to an award of limited duration alimony. Meanwhile, the father remarried and continued to have parenting time with the children.

In January 2006, about three years after the divorce, the father noticed that Abigail was limping. After initially claiming that she had simply fallen, Abigail disclosed that she had been bitten on the leg by her mother after they had an argument. The human source of the bite mark was confirmed in a certification by Abigail's pediatrician. Abigail also reported other hurtful and aberrational behavior by her mother. These acts included, among other things, the mother allegedly hitting Abigail with a spoon, making her sleep in her street clothes, and, on one occasion, squeezing her face so hard that her eyeglasses broke.

Based on these revelations, the father brought an order to show cause and gained temporary custody of the children. The court ordered the mother to undergo a psychiatric evaluation and also ordered Dr. Cooke to perform an updated custody evaluation. In the meantime, the court required supervision of the mother's parenting time.

The court-appointed psychiatrist, Dr. Charles Martinson, found that the mother was suffering from major depression, which was exacerbated by stressors such as the divorce, the family's move out of the marital home and the death of her own mother. Dr. Martinson noted that the mother's symptoms had worsened over time, leading to "emotional acting out and [the] exercise of poor judgment in her parenting approach towards her children, especially [her daughter]." He also observed that "the mother's personality style predisposes her to behave in an angry and emotionally reactive manner towards her children, especially in moments of high frustration."

After meeting with both parents and the children and also administering various personality tests, Dr. Cooke completed an updated custody evaluation in September 2006. He recommended that the father be awarded sole legal custody. Dr. Cooke, who has performed over 900 custodial evaluations, acknowledged that he "rarely" recommends sole custody but that it was warranted here because of the mother's instability. The psychologist did note, however, that both children still love their mother and wanted to see her.

Having considered the findings of Dr. Martinson and Dr. Cooke, the court continued the father's temporary custody and the supervised conditions on the mother's visitation. In the meantime, the mother received professional counseling.

In December 2006, the mother moved to modify the extant custody arrangement and regain the status of primary caretaker. The court scheduled a plenary hearing and, in advance of that hearing, asked Dr. Cooke to do another updated evaluation. Dr. Cooke met again with the parties and the children, and administered more tests. He also consulted, among ...


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