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Falcone v. Cipriano

May 10, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FD-09-1631-04.

Per curiam.


Submitted March 24, 2010

Before Judges Sabatino and J. N. Harris.

The parties are the parents of an almost twelve-year-old daughter, over whom they have squabbled since the child's birth. This appeal is the latest chapter in their persistent, contentious litigation stretching over the course of the last decade following the entry of a December 18, 1998 consent judgment that incorporated the parties' "Support and Parenting Agreement."

Although agreeing to joint legal custody, defendant was designated as the primary custodial parent. After more than twelve trips to the Family Part,*fn1 and an earlier foray to this court,*fn2 the parties remain engaged in unremitting litigation.

The present round of proceedings involved a change in the parties' parenting time arrangements. Plaintiff appeals from the order entered on April 1, 2009, which terminated his overnight parenting time on Thursdays and Sundays if the next day is a school day. The order also denied plaintiff's request for the court to appoint a psychologist "to conduct a best interest evaluation as to the issues of residential custody and parenting time." Finding neither legal error nor an abuse of discretion in these decisions of Judge Maureen B. Mantineo, we affirm.*fn3


The most recent friction point between the parties flared up in April 2008, when plaintiff's overnight parenting time on school nights was suspended by the court on an emergency basis. Instead of being afforded the previous practice of driving his daughter to school on the mornings following his overnight parenting time, plaintiff became obligated to return his daughter to the custody of her mother by 8:00 p.m. the evening before a school day. The former practice involved a pickup of the child at school on the Thursday afternoon and a transport of the child to her school early on Friday morning. These arrangements had been implemented after the court interviewed the child about her personal concerns and preferences.

Plaintiff's parenting time on school nights was truncated due to the court's serious concerns about the means plaintiff utilized in order to get his daughter to school. Plaintiff currently resides in Matawan; defendant formerly resided in Secaucus, but now resides in Little Ferry. Prior to September 2008, the child attended elementary school in Secaucus and it is now an approximate forty to forty-five minute automobile drive from Matawan to Secaucus.

On multiple occasions in the early morning of a school day, plaintiff had his parents--the child's grandparents--drive the girl from his Matawan residence to the Secaucus school in a van. While en route, the daughter would sleep in the back of the van without a seatbelt or other restraint, sometimes along with her grandmother, and then change into her school clothes inside the van before departing for the school building to attend classes. After defendant brought these circumstances to the attention of the court, together with photographs to document the practice, Judge Mantineo entered an order on April 9, 2008, which suspended plaintiff's overnight visitation on school nights pending a full hearing. The hearing was not scheduled for several months, after a new school year commenced, because the court wanted to conduct an interview with the child, who was by that time ten years old.

In response to defendant's request for suspended parenting time, plaintiff filed a motion seeking the appointment of a psychologist to conduct an evaluation of the child's best interests. He claimed that changed circumstances sufficient to warrant a review of the custodial provisions of the parties' 1998 agreement were present, which included: "[my daughter] was a baby then [and] is now [ten] years old; [b]oth defendant and I have married, so [my daughter] has a new step parent at both houses; [b]oth defendant and I have another child; [d]efendant has relocated to Little Ferry and changed [my daughter's] school this year; and [d]efendant has become emotionally controlling and abusive towards our daughter."

As several examples of defendant's "emotionally controlling and abusive" behavior, plaintiff pointed to: (1) defendant's aggressive conduct in collecting photographic evidence regarding the manner of transporting the child to school; (2) defendant's three-day banishment of the child to the maternal grandmother's home after the child said some uncomplimentary things about defendant to Judge Mantineo in a 2007 interview; and (3) defendant's allegedly continuous behavior of telling the child that plaintiff is a liar.

Plaintiff also brought to the court's attention his concern about the overall parenting skills of defendant,*fn4 and mentioned incidents involving the child's vomiting blood; riding on the back of defendant's new husband's motorcycle; the child's supposed fear-inspired stomach aches; and the child being harangued by defendant over learning how to ski. Finally, plaintiff emphasized that the child had told Judge Mantineo directly that she ...

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