On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-1408-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Espinosa.
Following a six-day plenary hearing regarding issues of custody and parenting time, the trial court entered an order and comprehensive written opinion that disposed of all issues. Plaintiff J.L.T. did not appeal from that order. Just siX months after the order that granted sole custody of their daughter to defendant M.T., J.L.T. filed a motion that re-argued issues addressed in the court's decision. J.L.T. appeals from the denial of her motion. M.T. appeals from the denial of his cross-motion for counsel fees and to restrict J.L.T. from filing further motions without leave of court. We affirm.
The parties had one child together, "Marissa" (a fictitious name), born October 28, 1998. M.T. also adopted J.L.T.'s child from a prior relationship, but no issues involving her are raised in this appeal. When the parties divorced, their September 2005 property settlement agreement (PSA) provided that they would share joint legal custody of the children and that the children's primary residence would be with J.L.T.. The PSA stated that the parties recognized that Marissa "suffers from a respiratory illness and has been... treated by doctors for some time." The parties agreed that they would cooperate with each other regarding her care.
Just months later, there was a change in custody.
Mary Ann Stokes, the parenting coordinator, believed that Marissa was not being properly cared for physically, psychologically or emotionally by J.L.T.. She later testified that she felt the need to end her services so that she could convey her concerns about Marissa's safety to the court. At the time, Marissa was approximately seven and one-half years old. She weighed forty-nine pounds and had lost weight at times while living with her mother. In the first three quarters of the school term, she had missed eighteen and one-half days of school and had been tardy nineteen times. When she attended, she was not prepared and not neatly dressed for school. In the certification Stokes submitted to the court, she expressed her concerns not only about Marissa's condition but about the obstacles posed by J.L.T.'s inability or unwillingness to care for Marissa and interact with other adults responsible for her welfare in a mature and honest manner. She voiced "deep concerns about [J.L.T.'s] versions of the facts[,]" described J.L.T. as "a very manipulative person" who is emotionally invested in Marissa's poor health and in painting M.T. as a poor caregiver. For example, J.L.T. accused M.T. of failing to give Marissa her oxygen therapy when she refused to give him the oxygen tank necessary for the therapy. Addressing J.L.T.'s contention that Marissa is returned home sick after visiting M.T., Stokes stated, "My greatest concern about [J.L.T.] is my gnawing fear, but with no direct evidence to support this fear, that [she] may be doing something to [Marissa] to make her sick after [Marissa] has been with [M.T.]" Stokes recommended that temporary custody of Marissa be transferred to M.T. immediately until a plenary hearing could be held and that J.L.T. "should have supervised parenting time only to insure that she is not poisoning [Marissa's] mind or body."
By order dated March 8, 2006, the court granted M.T.'s request to transfer temporary physical custody of Marissa to him pending a plenary hearing. The court also appointed Helen Glass as guardian ad litem for Marissa, terminated Stokes's services as parenting coordinator, provided for parenting time for J.L.T. and required the parties to comply with Marissa's medical needs.
The court conducted a plenary hearing in the spring of 2008 to determine custody and child support as affected by the custody determination. At the time of the hearing, Marissa was nine years old. In its opinion, the court described the testimony from the parties; Glass; Stokes; Dr. Montalvo-Stanton (Dr. Montalvo), a pulmonologist who had treated Marissa until April 2006; J.L.T.'s psychiatrist; and J.L.T.'s mother, sister, friend, and others.
The psychiatrist testified that J.L.T. suffers from major depression and that her symptoms include anger, suicide attempts, substance abuse and intolerance of being alone. He stated that he prescribed her medication; that she was doing well and that he saw no psychiatric impediment to her having custody of Marissa. There was also testimony about a time when M.T. had serious problems and attempted suicide.
Glass testified that J.L.T. considered her own opinions regarding appropriate treatment for Marissa to be superior to those of treating physicians. Glass stated that J.L.T. exaggerated Marissa's medical condition to the point of inaccuracy to treating physicians in an effort to convince them to agree to her ideas. Glass also testified to her perception that, when a lung transplant for Marissa was being considered, J.L.T. appeared to be looking forward to Marissa being placed on the lung transplant list because of all the attention and medical notoriety it entailed. J.L.T. denied that this was the case. As early as May 2006, Glass suspected that J.L.T. was either doing something to harm Marissa during her visits or exaggerating her symptoms to support her claims that Marissa became ill when visiting M.T. She stated, "Significantly, [J.L.T.] seems to want [Marissa] to be more ill than she really is." For example, although Marissa's stress test was normal, J.L.T. insisted that Marissa was "oxygen hungry" and suggested that she use an oxygen tank during physical activity. Glass cited examples of J.L.T. blaming others for failing to attend to purportedly emergent medical issues for Marissa despite her own inconsistency in doing so. Glass noted "one of the great paradoxes of this case" to be that, despite her greatly reduced lung function, Marissa was involved in dance, soccer and lacrosse, even in May 2006.
Glass prepared several reports for the court that detailed not only her concerns but those of Marissa's pediatrician and her school principal that J.L.T. manipulated Marissa's symptoms or reported symptoms exaggerated for her own interest. The school principal's review of the attendance records of Marissa and her sister led her to suspect that the frequent absences, usually of only one child at a time, were the result of J.L.T.'s desire to keep one child home for company rather than because of actual illness. In her report, Glass discussed the possibility that J.L.T. suffers from a variation of Munchausen by proxy. This possibility was first raised by one of Marissa's pediatricians. Another pediatrician explained that this was not a classic case because Marissa was actually ill. Nonetheless, there was an abiding suspicion that J.L.T. might have exacerbated Marissa's symptoms for personal reasons. Glass recommended that M.T. be vested with sole legal and residential custody of Marissa and that all medical decisions be made by M.T.
Stokes provided testimony consistent with her earlier report. Quoting from different experts in the case whose reports had been supplied to her, Stokes stated that J.L.T. suffers from psychological problems that are resistant to management even with time and professional help. Stokes also testified that J.L.T. interfered with M.T.'s parenting skills.
Both Stokes and Glass recommended that J.L.T. have only supervised visitation with Marissa. Both had noted the irony in J.L.T.'s demands regarding Marissa's respiratory condition while stubbornly refusing to acknowledge that the two cats and two dogs in her home might adversely affect that condition. Glass therefore recommended that there should be no overnight visits until "J.L.T. obtains a satisfactory air quality test on the ...