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Huss v. Mahan

March 19, 2009

CYNTHIA M. HUSS (F/K/A CYNTHIA MAHAN), PLAINTIFF-RESPONDENT,
v.
CHARLES MAHAN, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-628-97.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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 ...


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