January 8, 2010
ANGEL R. GORSKI, PLAINTIFF-RESPONDENT,
GREGORY R. YOUNG, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FD-05-531-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 10, 2009
Before Judges Gilroy and Simonelli.
Defendant Gregory Young appeals from the January 2, 2009 Family Part order denying his motion for a change of residential custody of the parties' ten-year-old son, Brian,*fn1 born in June 1999. Defendant contends that the trial judge abused his discretion by disregarding evidence that plaintiff Angel Gorski is too mentally unstable to parent Brian. We reject this contention and affirm.
Brian has lived with plaintiff since birth, with defendant having liberal parenting time. Defendant claims that on July 15, 2005, plaintiff was hospitalized for attempting suicide by jumping into a canal from a marina dock. Plaintiff denies this was a suicide attempt, and claims she fell into the water accidentally.
Because of this incident, and because of a notice from Brian's school of his numerous absences and "tardies," defendant filed an application, seeking a change in residential custody. He alleged that plaintiff's mental instability caused Brian emotional harm. Without oral argument or a plenary hearing, on August 23, 2005, the court denied the application. Defendant filed a motion for reconsideration, which the court denied after hearing oral argument. Defendant appealed. In an unpublished opinion, we reversed and remanded to the trial court for a plenary hearing pursuant to Mackowski v. Mackowski, 317 N.J. Super. 8, 11 (App. Div. 1998). Gorski v. Young, No. A-1936-05 (App. Div. October 26, 2006).
The plenary hearing commenced on April 5, 2007. Although much of the testimony criticized plaintiff personally, many witnesses agreed that Brian is thriving academically, and that plaintiff is an excellent mother whose personal problems have not negatively affected her son. Several witnesses also testified that Brian excels in extracurricular activities.
Prior to rendering a decision, the court ordered the parties to undergo a mental health assessment by a mental health/family counselor. Although the counselor was highly critical of plaintiff, test results did not indicate plaintiff's parental unfitness. Rather, they revealed that although plaintiff has some personal shortcomings, she demonstrated good parenting skills.
The counselor also evaluated Brian and noted that he demonstrated "a well-rounded approach to daily life" and an "obvious enjoyment being in [each] parent's company." The assessor also noted that Brian is "a bright, likeable and well-loved child" whose test results reveal that he functions positively and is not at risk. The counselor recommended that Brian's best interests would be served by having defendant as the parent of primary residence.*fn2
The court continued the plenary hearing on November 6, 2008. Over plaintiff's objection, the court admitted the mental health assessment into evidence. Plaintiff disputed many of the counselor's findings but had no opportunity for cross-examination because the counselor did not testify.
On November 14, 2008, the trial judge rendered an oral opinion denying a change in custody. The judge found no change in circumstances, concluding that there was no competent proof that plaintiff's alleged multiple residences and relationships, and Brian's absences and "tardies" at school, have adversely impacted the child. The judge emphasized that Brian's most recent report cards revealed that he is doing well in school despite his numerous absences and "tardies."
The judge also considered the mental health assessment and again found that there was no evidence that the canal incident, which was an isolated incident, or the psychological concerns expressed in the assessment, adversely impacted Brian.*fn3 The judge specifically found that the mental health assessment findings did not render plaintiff an unfit parent, and that Brian is doing well in his mother's care.
"Family Part judges are frequently called upon to make difficult and sensitive decisions regarding the safety and well-being of children. Because of their special expertise in family matters, we do not second-guess their findings and the exercise of their sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007). See also Cesare v. Cesare, 154 N.J. 394, 413 (1998). "Because of the family courts' special jurisdiction and expertise in family matters, [we] should accord deference to family court factfinding." Id. at 413. Moreover, "[t]he trial judge has the opportunity to observe the conduct and demeanor of witnesses and a better opportunity than the reviewing court." Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div.), certif. denied, 28 N.J. 147 (1958). Thus, "[i]n our review of an issue of custody the conclusions of a trial judge are entitled to great weight and will not be lightly disturbed on appeal." DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976) (citing Sheenan, supra, 51 N.J. Super. at 295). See also Terry v. Terry, 270 N.J. Super. 105, 118 (App. Div. 1994); Palermo v. Palermo, 164 N.J. Super. 492, 498 (App. Div. 1978). With these standards in mind, we continue our analysis.
"'[A] judgment involving the custody of minor children is subject to modification at any time upon the ground of changed circumstances.'" Innes v. Carrascosa, 391 N.J. Super. 453, 500 (App. Div. 2007) (quoting Sheehan, supra, 51 N.J. Super. at 287)). "A party seeking such modification bears the burden of proof." Ibid. (citing Sheehan, supra, 51 N.J. Super. at 287-88). The moving party must show a change in circumstances affecting the welfare of the child. Sheehan, supra, 51 N.J. Super. at 287-88.
The child's welfare "has been construed as meaning the 'safety, happiness, physical, mental and moral welfare of the child.'" Id. at 291 (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)). It includes "many elements and concerns more than the physical well-being resulting from the furnishing of adequate food, clothing and shelter. It concerns, inter alia, the spiritual and social welfare of the child." Id. at 292. "The basic issue is a change in the circumstances which would affect the welfare of the child." Id. at 287.
Based on our review of the record, we discern no abuse of discretion or judicial bias. We conclude that the judge properly found that defendant failed to demonstrate changed circumstances affecting Brian's welfare. Brian has been in the sole custody of his mother since birth, and their relationship is stable and happy. Brian is normal and well-rounded, he functions positively, he is doing well both at home and in school, and he is not at risk in his mother's care. Further, notwithstanding her personal and psychological shortcomings, plaintiff is fit and a good parent.
We make one further observation. Because plaintiff disputed the mental health counselor's findings and objected to the admission of the mental health assessment into evidence, she should have been afforded the opportunity of cross-examination. "Generally, it is improper for a court to decide a case in reliance on an expert opinion without allowing the parties to examine the expert." Luedtke v. Shobert, 342 N.J. Super. 202, 216 (App. Div. 2001). Given the judge's conclusion, however, we find this error harmless.