On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-23-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Messano and LeWinn.
Plaintiff Russell D. Coombs, Jr., appeals from an order of the Family Part that "modif[ied] the existing parenting configurations" between him and his former wife, defendant Michelle M. Coombs. The order of September 8, 2009 maintained the status quo regarding the joint legal custody of the parties' two sons, ages 12 and 10 at the time, but named defendant "the primary residential parent," instead of plaintiff, who had served in that capacity for several years pursuant to a prior court order.
Before us, plaintiff contends that the judge "failed to consider all of the relevant statutory criteria in determining the best interests of the children . . . ." We have considered this argument in light of the record and applicable legal standards. We reverse.
The parties were married in July 1996, and relocated to South Carolina shortly before the birth of their first son in November of that year; their second son was born in June 1999. They remained in South Carolina until January 2001, when, with the exception of a few months, they returned to and resided in New Jersey. By the summer of 2002, the parties separated, and the children resided with plaintiff.
Although the exact circumstances that prompted it are undisclosed by the record, in December 2002, the court ordered a comprehensive custody and visitation evaluation that resulted in the October 20, 2003 report of Dr. John F. McInerney.*fn1 At the time of the evaluation, which occurred months earlier, the parties were still separated; plaintiff was living with his parents and maintained primary residential custody of his two sons. Defendant was exercising supervised, weekly parenting time, pending a final determination by the Family Part judge.
McInerney detailed some of the events that led to the then-current custody and parenting time arrangement. In November 2000, defendant developed an "excessive concern with exercise and weight loss[,]" ultimately affecting her mental and emotional disposition. She became "somewhat erratic and irrational in her thoughts and behaviors." In February 2001, defendant continued to decompensate, and plaintiff and defendant's sister "[e]ffect[ed] an involuntary hospitalization of defendant at [a psychiatric hospital] in Columbia," South Carolina. While there, defendant was diagnosed with bipolar disorder.
In June 2002, defendant had a manic episode marked by "disordered thinking, irresponsible behavior and a refusal to comply with treatment." Defendant was subsequently admitted to the Atlantic City Medical Center for psychiatric treatment on an in-patient basis in July, and again in August. The latter admission resulted in a transfer to Ancora State Pychiatric Hospital, where defendant remained until October 2002. She commenced out-patient treatment thereafter.
In his report, McInerney noted defendant's concern regarding plaintiff's alleged excessive use of alcohol, something plaintiff "acknowledged . . . and felt the need to reduce . . . ." Nevertheless, he concluded that plaintiff was "a well-oriented, cooperative and forthcoming individual" without any evidence of "thought disorder . . . ." On the other hand, McInerney opined that defendant had a "severe" disorder that would likely "be persistent given the occurrence of at least three separate[,] very severe episodes occurring since February." In his opinion, however, defendant was in remission, and showed "no symptoms of major depression . . . ."
McInerney also performed a bonding evaluation. He opined that plaintiff was the "primary source of security and permanence" for the children. The children's relationship with defendant was "more problematic," and marked by "a degree of anxiety and uncertainty." McInerney recommended that the children remain in the care and custody of plaintiff, and that defendant exercise supervised parenting time.
In 2006, the parties entered into a consent order agreeing that defendant would undergo another psychological evaluation by McInerney to assess the continued need for supervision of her parenting time. In a report dated February 9, 2006, McInerney opined that defendant evidenced marked improvement in coping with her disorder, made "very significant progress[,]" was compliant with treatment, and had gainful employment. He recommended that defendant be granted joint legal custody and unsupervised parenting time.*fn2
In August 2007, plaintiff was arrested and subsequently indicted for conspiracy to possess cocaine. This prompted yet another evaluation by McInerney that resulted in his report of May 28, 2008. He noted initially that the parties continued to experience difficulties in co-parenting. Plaintiff believed defendant interfered with the children's school activities by complaining that their athletic events interfered with her parenting time. Plaintiff expressed concern about defendant's complaints to the children regarding his use of alcohol. McInerney referenced a recent drug and alcohol evaluation of plaintiff that noted positive findings regarding cocaine and alcohol use, but also concluded that plaintiff did not evidence "psychoactive substance abuse disorder."
Defendant expressed concern that plaintiff used the children "as 'messengers'" to communicate with her, and left "angry phone calls and messages" on her phone, to which the children were privy; she again expressed concern over plaintiff's use of alcohol. McInerney took note of the report from defendant's treating physician who opined that her manic disorder was likely due to a psychotic reaction to over-the-counter diet supplements that contained an amphetamine-like substance and were no longer sold commercially. McInerney believed that defendant's relationship with her children was "appropriate, reciprocal, concerned, and thoughtful."
McInerney also interviewed both boys. Each one felt anxiety by being "in the middle" of their parents' disputes. The younger boy reported that he was concerned about driving with his father "'after [his father] and a friend have had a few beers.'"
McInerney recommended that the children remain in plaintiff's custody; he reasoned, however, that if plaintiff was incarcerated on his criminal charge, defendant should be granted custody "since she [wa]s fully capable of appropriate parenting . . . ." McInerney also recommended expanded parenting time for defendant, counseling for both parents, continued counseling for the children, and that plaintiff refrain from alcohol use in the children's presence. He also recommended reconsideration if plaintiff and defendant failed to co-parent effectively.
On October 21, 2008, the judge entered an order (the October order) granting defendant expanded parenting time. In his brief letter opinion, the judge noted there was no evidence that defendant would exhibit another manic episode "or that the children were ever put in danger for any reason related to . . . defendant's mental health." The judge implored plaintiff, [P]lease hear your son . . . when he tells Dr. McInerney: "My dad just won't talk to my mom about plans." Please try as hard as you can to understand his pain when he reports that he generally finds himself in the position of being the "messenger" between you and his mother. It really ought not to be so hard for an 11-year-old boy.
Citing McInerney's report, the judge determined that there were two "eventualities" that would "trigger a serious review of the plaintiff's primary custodial designation": (1) "colorable evidence that . . . plaintiff ha[d] driven the boys . . . while impaired . . ."; and (2) the parties' failure to lessen "the intensity of conflict . . . ."
However, the tension between plaintiff and defendant did not abate. In November 2008, they had a disagreement regarding Thanksgiving Day plans. Under the existing parenting time schedule, the children were supposed to spend Thanksgiving with defendant, but plaintiff wanted to take the children to a Philadelphia Eagles football game as a birthday present for his older son. The conflict resulted in defendant and the boys exchanging text messages in which they pleaded with their mother to let them attend the football game. In March 2009, the parties had another disagreement when plaintiff scheduled a vacation that interfered with defendant's parenting time, providing her, she claimed, with virtually no notice.
On January 22, 2009, the parties' older son reported to his guidance counselor that he was "afraid for his father . . . because he ha[d] a drinking problem." The guidance counselor reported this to the Division of Youth and Family Services (D.Y.F.S.) which interviewed both boys. The older son reported that plaintiff would consume alcohol in front of him and his brother, and "drive [them] around while under the influence." D.Y.F.S. determined that any allegation of neglect was unfounded, but nevertheless implemented a "safety protection plan" under which plaintiff and his parents, with whom he and his ...