March 19, 2009
CYNTHIA M. HUSS (F/K/A CYNTHIA MAHAN), PLAINTIFF-RESPONDENT,
CHARLES MAHAN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-628-97.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 25, 2008
Before Judges Fuentes and Gilroy.
Defendant Charles Mahan appeals from orders entered by the Family Part: (1) denying his request for custody of his two minor children; (2) requiring supervised parenting time; (3) requiring him to pay for costs associated with psychological evaluations and supervision of the children; and (4) denying his request for counsel fees. We affirm.
The parties were divorced under a Judgment of Divorce (JOD) entered on January 5, 1998. The JOD provided that the parties would have joint custody of the two minor children born of the marriage, a boy, born in February 1991 and a girl, born in September 1996. Plaintiff Cynthia Huss was designated as the primary caretaker for the two children.
In August 2005, plaintiff filed an order to show cause (OTSC) seeking that defendant be restrained and enjoined from:
1. [E]xercising any parenting [time] or having any telephone contact with the parties' two minor children until further order of the court.
2. In the event the court is inclined to permit parenting time, directing that parenting time be supervised by a court appointed mental health professional and no overnight visitation be permitted until further order of the court.
In support of the OTSC, plaintiff filed a certification expressing her apprehension that defendant posed a physical and psychological risk to the children, especially to the older child. Plaintiff alleged that her son told her the only way his life would be at peace is if he shot and killed his father. According to plaintiff, defendant "repeatedly hits [the boy] or throws balls at him, hitting him in the back, head and side," and that [her son] has told her "he is afraid of his father."
Plaintiff described an incident when the boy was tired of playing catch with a neighbor. Defendant allegedly became angry and pulled him into the garage, shut the door and "slapped [him] around" and then sent him to his room for four hours as punishment. Plaintiff further stated that each time defendant telephones the boy panics, becomes extremely agitated, and does not want to answer the phone. The child also complains of stomachaches and nervousness before leaving for parenting time with defendant.
In support of her application, plaintiff also included a certification from Deborah Patrucker, a licensed clinical social worker who had been treating the boy on a weekly basis since February 2005. The boy's school counselor referred him to Patrucker. The school counselor noted symptoms of depression characterized by poor school performance and feelings of hopelessness and sadness.
According to Patrucker:
During the course of [her] treatment of [the child] he appeared quite depressed and preoccupied with the problems with his father. Further therapy revealed that [he] feels intimidated by his father and when he confronts his father regarding his frustration or tries to express himself to his father, his father responds negatively and with derision. [He] also fears being hit, which he reports, has happened when his father has lost his temper.
As a means of addressing this schism between father and son, Patrucker conducted several therapy sessions with both the boy and defendant. Unfortunately, this approach did not produce the anticipated result. Thus, Patrucker made the following recommendations.
Despite these sessions, which lasted several hours over a period of time, [the child] has reported to me that when he tries to implement the tools we used in therapy with his father, his father responds negatively. . . . there has been little improvement.
During the course of therapy, [the boy] has expressed that he wishes to spend less time with his father. I support [his] views and believe that it is in [his] best interest at this time.
Plaintiff made similar allegations of estrangement involving the youngest child, a girl then eight years old. According to plaintiff, the girl also does not want to see her father. She cries and begs to stay at home on those occasions scheduled for night parenting time. Plaintiff alleges that her daughter has told her that she hates and fears her father. Plaintiff certified that the school nurse has told her that the child is known as the "frequent flyer" in the nurse's office because of her repeated complaints to the nurse that she has headaches and stomachaches when she has to spend the night with defendant.
By order dated August 16, 2005, the court denied plaintiff's application for emergent injunctive relief. The court, however, directed the Division of Youth and Family Services (DYFS) to investigate the allegations of physical abuse, and ordered both parties to appear on September 23, 2005.
On August 19, 2005, three days after the court's initial order, DYFS filed a report with the court erroneously dated June 6, 2005. Based only on the content of that report, and without notice or input from the parties, the court "entered an order dated August 19, 2005, sua sponte suspending defendant's parenting time until further order of the court."
At the hearing conducted on September 23, 2005, defendant's counsel requested a copy of the DYFS report, or, in the alternative, for the court to disclose the contents of the report. The trial judge denied the request. When informed by defendant's counsel that he had written directly to DYFS requesting a copy of the report, the judge responded: "That's not good enough. I want it to go to the Attorney General."*fn1 The court directed defense counsel to contact the Attorney General's Office directly with the following request:
The court would request that the Attorney General advise the Court of the Office's position within ten days of receipt of [defendant's counsel's] inquiry. Now, the AG's office is not at this point a party to your -- I'm not going to order them; that's a request, and please phrase your letter that way.
The record before us does not disclose whether the Attorney General responded to this request. At oral argument in this appeal, however, counsel advised us that the report was never made available to either side. Although it could have been made available to us under seal, the appellate record does not contain a copy of the report.
At the conclusion of the September 23, 2007 hearing, the court entered an order which provided, in pertinent part, as follows:
[A] psychologist to conduct a best interests evaluation . . . [and that] defendant shall solely be responsible for the cost of the evaluation, without prejudice.
Awarding plaintiff counsel fees and costs, is reserved [until] after [the psychologist's] evaluation is completed.
[D]efendant shall have supervised parenting time w[ith] both children at [once]. The parties agree [that] Edie Larson shall act as the supervisor . . . . Defendant shall be solely responsible for the cost of Ms. Larson without prejudice. . . . [T]he parties shall take into consideration both childrens['] schedule[s and] Ms. Larson's availability.
The court's "Statement of Reasons" gives the following explanation in support of this decision.
The court bases today's decision in large part on the DYFS Report and also, although to a lesser extent, on the certification of Deborah S. Patrucker, a therapist who has been treating [the older boy] since February 10, 2005. Of course, the court has also reviewed the certifications and exhibits filed by both parties and given them weight in its decision.
The DYFS Report is confidential and the court's review was in camera. The court has advised the parties that, because the DYFS Report was important to the court's ruling, it will consider making a redacted copy of the report (redacting the description of DYFS's interviews with the children) available to the parties and their attorneys upon notice to the Attorney General. Defendant is to notify the Attorney General. First, the court has ordered a best interests evaluation to be done for [the children]. The parties are in agreement that this should be done, although they disagree as to who should pay. In light of the serious allegations plaintiff makes of [her son's] comments about his father and [the boy's] alleged unwillingness to visit his father, the court finds that it is necessary to have an objective review of the mother, father and children so that the court has the benefit of an outside perspective on the familial relationships. The court has ordered defendant to bear the expense of the evaluation because it is his actions that have been called into question and it is more equitable that he should be responsible, at least for the time being. This determination is without prejudice to defendant's right to seek allocation of the costs at a future date. The parties are in the process of suggesting professionals to conduct the evaluation and the court will enter a subsequent order in that regard. Second, although the court may interview the children at a future time, that decision will abide receipt and review of the evaluation report.
Third, the court will not rule now on an award of counsel fees on this application. Any application for counsel fees should be made after receipt of the evaluation and the court will consider all relevant factors to such an application at that time.
Fourth, the court is mindful of the order entered on August 19, 2005, suspending defendant's parenting time with his children. To reiterate, this order was entered sua sponte after receipt of the DYFS Report. . . . Incidents described in the DFYS Report, by Ms. Patrucker and at least one witness (a neighbor) indicate that defendant may have difficulty controlling his emotions. On balance, the court seeks to protect the children and to foster their relationship with their father to the extent that is possible. For that reason, the court has ordered supervised parenting time.
The parties have agreed that Ms. Edie Larsen shall act as supervisor and visitation will occur in her presence. Again, defendant shall pay without prejudice to future allocation of the expense.
In ordering supervised visitation, the court considered treating [each child] differently. Perhaps the court could have ordered only [the boy] be subject to such an order because there is much less evidence currently before this court of problems between defendant and his daughter. Nevertheless, the court notes again defendant's apparent difficulty [is] in controlling his emotions and concludes it in the best interests of both children that they visit their father under supervision. (Emphasis added.)
The parties' contentious behavior resurfaced just two weeks after the date of this order. The issue concerned defendant's claim to parenting time on Halloween. Plaintiff objected because the children had previous plans. After various attempts at compromise, including giving defendant additional parenting time on some other date, the issued remained unresolved.
The situation quickly deteriorated. On November 2, 2005, plaintiff's counsel received correspondence from defendant's counsel stating that defendant had filed a criminal complaint against plaintiff regarding a violation of parenting time. On October 12, 2005, the court ordered the parties to retain Dr. Mathias R. Hagovsky, Ph.D., to conduct a best interests evaluation. At a probable cause hearing on December 1, 2005, a municipal court judge denied approval to file defendant's criminal complaint alleging custodial interference by plaintiff on October 31, 2005.
On March 21, 2006, Dr. Hagovsky issued his forensic psychological evaluation. As a threshold issue, Dr. Hagovsky ruled out any "significant psychopathology" that would preclude either parent from assuming custody of the children. He found, however, significant differences between plaintiff and defendant on the question of parenting style or philosophy. On the whole, plaintiff's parenting approach was more flexible and far less controlling and demanding than defendant.
While remaining neutral on the relative merits of each approach, Dr. Hagovsky nevertheless opined that it is not so much the merits of either approach that is troublesome, but the fact that the children are expected to live their lives regularly switching from one to the other. . . . [O]ften enough [the children] choose the parent whose style is either easier to live with, or more compatible with their own sensitivities. For a demanding, competitive-minded parent, the choice is almost universally for the other parent, who is typically less demanding and competitive.
Dr. Hagovsky thus recommended that the parties seek professional guidance on this issue, in order to provide the children with a "balanced experience." The goal is to 1) [get] the parents to close the gap between their approaches and styles, 2) [enhance] their communication so that the children observe them working together, 3) [disabuse] the children of what often become exaggerated or apocryphal fixed negative notions about the parent they are avoiding, 4) [work] directly with the children and the parent they are avoiding to discover common ground, 5) [work] individually with the children to allay fears, dispel myths, and aid their understanding the situation, and 6) restore a realistic, unsupervised parenting plan.
According to Dr. Hagovsky, it may take as much as three months for an experienced mental health professional to develop such a plan. He thus suggested that the court establish a deadline for the development of such a plan.
Unfortunately, the parties responded to Dr. Hagovsky's report with more motion practice. On April 6, 2006, defendant filed a motion requesting sole custody of the children and asking the trial court to award him fees and sanctions as a result of him not seeing the children on Halloween. On May 10, 2006, plaintiff filed opposition and a cross motion requesting that Family Therapist, Eric Kispert, be appointed to assist in the implementation of a parenting plan in accordance with Dr. Hagovsky's report.
The court denied defendant's motion, and granted plaintiff's cross-motion, appointing Kispert to assist in implementing Dr. Hagovsky's recommendations. On January 22, 2007, Kispert wrote a letter to counsel describing the sessions that had taken place with all of members of the family, and suggesting the following course of action:
My recommendation is to remove the supervised visitation that is in place.
This is consistent with Dr. Hagovsky's recommendations from March 2006. I would suggest a step-down approach to visitation with Mr. Mahan having the children one evening during the week for a period of four hours, and one weekend day for a period of eight hours. This should remain in effect for one month with a reevaluation at that point. This would provide the children (and the parents) with a time to adjust to the transition. It needs to be noted that continued family therapy is essential through this and any future transitional period. This is especially necessary to ensure that Mr. Mahan's temperament can be bridled. Both parents have expressed a degree of comfort in my work with them, and I am willing to serve as the safety-net for the children moving forward.
Once again defendant's response was to seek judicial redress. Defendant filed an OTSC on February 22, 2007, seeking custody of the children and other monetary relief. The court seized this opportunity to conduct a conference through which the parties entered into a Consent Order providing (1) defendant's supervised parenting time shall be replaced by a parenting plan that follows Kispert's recommendation; (2) the parties and children agreed to continue to engage in family therapy with Kispert; (3) The parties waive counsel fees associated with the filing and appearance of the February 22, 2007 OTSC.
On May 11, 2007, the court entered an order regarding defendant's February 22, 2007 OTSC, addressing the portion of defendant's application for relief that was not resolved by the Consent Order. In this respect, the court denied defendant's request for counsel fees, directed that the parties share equally the liability for Dr. Hagovsky's fees and for the un-reimbursed portion of Kispert's fees, and directed defendant to pay all costs associated with supervised parenting time.
Against this backdrop, defendant now appeals arguing that the trial court erred in denying his motions: (1) seeking sole custody of the children; (2) for removal of Kispert as the family's therapist; (3) for counsel fees and allocation of the cost for court-appointed supervisor; and (4) for sanctions upon plaintiff for not making the children available on Halloween. None of these points have sufficient merit to warrant extensive discussion in a written opinion. We thus affirm substantially for the reasons expressed by the Family Part. R. 2:11-3(e)(1)(A)(E).
In making an award of custody, the primary and overreaching consideration is the best interests of the child. Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). The party seeking a modification of an initial custody determination must meet a two prong test: 1) that a "substantial" change of circumstances has occurred, Chen v. Heller, 334 N.J. Super. 361, 380 (App. Div. 2000); and 2) that the substantial change of circumstances is in the "best interest of the child." Todd v. Sheridan, 268 N.J. Super. 387, 398 (App. Div. 1993).
The record described at length here amply supports the trial court's denial of defendant's change of custody motions. All of the competent evidence presented to the court, in the form of psychological opinions and treatment records, strongly supports the court's decision to maintain the custody status agreed to by the parties in the consent order. Given their ages at the time this issue came before the court, the motion judge should have interviewed the children to get a first-hand account of their feelings in the matter. Despite this, however, we find no legal grounds for interfering with the court's ultimate judgment.
Finally, we note that the parties' son is now eighteen years old, and thus legally capable of deciding for himself the type of relationship he wishes to have with his father.