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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 In an unpublished opinion, we reversed and remanded to the trial court for a plenary hearing pursuant to Mackowski v. Mackowski, 317 N.J. Super. 8, 11 (App.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 ...