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Weiss v. Weiss


November 24, 2010


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-803-08.

Per curiam.


Submitted October 20, 2010

Before Judges Ashrafi and Nugent.

Defendant Eric S. Weiss appeals from portions of the October 7, 2009 order modifying and reducing his parenting time with the parties' two children. For the reasons set forth below, we find merit in defendant's argument that his parenting time should not have been reduced without a plenary hearing.

Therefore, we reverse and remand this matter to the Family Part to hold a plenary hearing.

Defendant and plaintiff Deborah Weiss were married on September 29, 2002, and had two children: a son born in 2004 and a daughter born in 2005. The parties separated on January 28, 2008, and were divorced in April 2009. On April 1, 2009, the court and the parties signed an "Order Determining Custody and Parenting Time." The order provided for joint custody of the children, designated plaintiff as the parent of primary residence and defendant as the parent of alternate residence, and appointed a parenting coordinator, Dr. Ronald Weinberg.

The order incorporated most of the recommendations of Sharon Ryan Montgomery, Psy.D., who had conducted a comprehensive custody and parenting time evaluation. Dr. Montgomery recommended the following parenting schedule:

It is recommended the father have parenting time with the children on alternate weekends from Friday after school (3:00 p.m. pick-up at JCC) until Sundays at 6:00 p.m. at the First Baptist Church in Westfield. It is further recommended the father have weekly parenting time on Wednesdays from after school 3:00 pick-up at JCC until return to school Thursday morning on the Wednesdays before the mother's parenting weekends and from 3:00 p.m. until 7:30 p.m. on the Wednesdays before the father's parenting weekends. The return transition should be at the Bedminster Police Department. It is also recommended the father have parenting time with the children on the Mondays following the mother's weekend from 3:00 p.m., pick-up at school (JCC) until 7:30 p.m. at the Garwood Police Department.

This schedule minimizes the contact between the parents to six times a month which is recommended due to the historical difficulties/conflicts around the transitions. It also eliminates the children going for seven days without any contact with their father which is not in their best interest. Hopefully, with a post-divorce decrease in hostility the transitions can be moved from a police station to a neutral public setting.

Dr. Montgomery's recommendations were changed in the April 1, 2009 order by deleting defendant's parenting time on Mondays but providing for his overnight parenting time on the Tuesdays following the plaintiff's parenting weekend. The order resulted in defendant having parenting time every other Tuesday (overnight), every Wednesday (alternating overnight and non-overnight), and every other Friday and Saturday (overnight).

Following the entry of the April 1, 2009 order, the parties filed a series of motions and cross-motions seeking to modify either custody or parenting time.*fn1 The parties filed motions on June 25, 2009, July 7, 2009, July 29, 2009, August 9, 2009, and August 11, 2009. On August 5, 2009, defendant filed an order to show cause alleging, among other things, plaintiff had failed to follow the custody and parenting order and had filed false criminal and domestic violence complaints against him. In response, plaintiff filed a cross-motion seeking, among other things, to modify defendant's parenting time.

The certifications of the parties were conflicting. Plaintiff referenced the court's awareness of the "substantial difficulty in the pick-up and drop-off of our children," a difficulty plaintiff attributed to the incompatibility of midweek parenting time and defendant's work schedule. Plaintiff characterized the mid-week pick-up locations and pick-up times as "extremely contested." Plaintiff insisted that mid-week parenting time was confusing and was causing more problems than it solved. Plaintiff asserted that defendant recently attempted to modify the parenting time due to his work schedule. Additionally, plaintiff represented their son had changed schools.

Defendant emphasized the parenting schedule was "established by Dr. Montgomery [and] was the result of her expert determination of what was in the best interests of the children." Defendant insisted "those best interests should control the outcome of the motion not 'made up' scenarios of the plaintiff." Citing to portions of Dr. Montgomery's report, defendant characterized the report as "inferring" that the children should not go more than four days without seeing their father. Defendant emphasized the report's explicit statement that it is against the children's best interests to go for seven days without any contact with their father. Defendant accused plaintiff of "inflexibility" concerning pick-up times during the summer and of ignoring the recommendations of the parent coordinator, Dr. Weinberg, who did not recommend changing parenting times.

During oral argument defendant opposed changing the parenting schedule, but urged the court to make the driving more balanced between the parties. Defendant objected to decreasing his parenting time in contravention of both Dr. Montgomery's recommendations and the best interests of their children.

Plaintiff argued her proposed schedule would simplify drop-off and pick-up times, and stabilize the process. When the trial court noted that plaintiff's proposed schedule would result in defendant having fewer overnights each month, plaintiff acknowledged the reduction, but insisted the proposed schedule would reduce the strife and impact on the children, and stressed that the parties needed "simplicity" in the pick-up and drop-off schedules.

The trial court changed defendant's parenting time to every other Wednesday (overnight), and every other Friday, Saturday, and Sunday (all overnight), with pick-up and drop-off at the children's schools. The new parenting schedule reduced defendant's parenting time by two days each month. Moreover, the new schedule resulted in the children not seeing defendant for periods of eight days. The trial court explained it was not "giving [defendant] another afternoon because then [he would] be losing time from work [and] [w]e're going to have the 'where are we picking up, where are we dropping off.'"

In ruling, the trial court explained the case was "unbelievably contentious," and the motion practice was "all out of proportion" and "taking up an incredible amount of court time." Deciding that an expert was not needed to explain that the mid-week drop-off and pick-up situation was causing extensive strife with the children, the court concluded the present situation was "totally unworkable." Acknowledging that the "therapist" may have made other suggestions, the trial court rejected such suggestions as unworkable because the parties could not get along. Consequently, the trial court modified defendant's parenting schedule. When defendant complained the court was "taking time from the children with their father," the court replied, "That's right, I am[] [b]ecause the parents are so litigious."

Defendant filed this appeal on November 23, 2009.

Scheduling parenting time based upon a determination of children's best interests is a matter of sound judicial discretion. See Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 157 (App. Div.), certif. denied, 178 N.J. 34 (2003). As a reviewing court, we afford deference to both the exercise of discretion and the fact-finding of Family Part judges. Ibid. Because of their special jurisdiction and expertise in family matters, the findings of Family Part judges are "binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). Here, however, the motion record does not contain adequate, substantial, credible evidence to support the trial court's exercise of discretion to modify defendant's parenting time.

The trial court considered a motion record consisting primarily of conflicting certifications that contained disputed facts, accusations, and allegations about improper motivations. For example, defendant alleged that plaintiff's motion to modify his parenting time was part of a larger scheme to alienate him from the children. Plaintiff, on the other hand, maintained that the difficulty and confusion caused by defendant's mid-week parenting time was attributable to defendant's work schedule.

The trial court ruled implicitly that the best interests of the children required a modified and simpler parenting schedule to reduce the parental disputes, to reduce the motion practice, and to reduce the children's strife and stress. The ruling was contrary to the opinion of the parenting time expert, Dr. Montgomery, who concluded that absence from their father for seven days would not be in the best interests of the children. There was not sufficient credible evidence in the record to support the reduction in defendant's parenting time to a level Dr. Montgomery believed was not in the best interests of the children.

Parental rights to custody and visitation are held "in high esteem" and are guaranteed judicial protection. Wilke v. Culp, 196 N.J. Super. 487, 496 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985). Our courts are committed to the principle that "children of separated parents should be imbued with love and respect for both parents, and where children are in [the] custody of one parent, the court should endeavor to effect this facet of the children's welfare by conferring reasonable rights of visitation on the other parent." Ibid.

"[T]he matter of visitation is so important, especially during the formative years of a child, that if a plenary hearing will better enable a court to fashion a plan of visitation more commensurate with a child's welfare, it should require it." Wagner v. Wagner, 165 N.J. Super. 553, 555 (App. Div. 1979), certif. denied, 85 N.J. 93 (1980). Resolution of parenting time should not be made on the basis of conflicting certifications and an otherwise insufficient record. See Fusco v. Fusco, 186 N.J. Super. 321, 327-29 (App. Div. 1982).

Where the parties' certifications are conflicting, and where a proposed modification to a parenting schedule partially contradicts the "best interests" opinion of the sole parenting time expert, a plenary hearing before reducing parenting time will usually be required. In light of those considerations, a plenary hearing should have been conducted.

Defendant also argues that a different judge should hear this matter on remand. We reject that contention. "Bias cannot be inferred from adverse rulings against a party." Strahan v. Strahan, 402 N.J. Super. 298, 318 (App. Div. 2008). The trial court was obviously concerned about the parties' inability to work together for the best interests of their children, and though the trial court may have been disappointed or frustrated with the repeated and perceived unnecessary motion practice, the court's decision was rendered with the children's best interests in mind. Having considered the record in its entirety, we conclude the evidence does not support defendant's position.

In light of our reversal and remand for an evidentiary hearing, it is unnecessary to consider defendant's remaining contentions that plaintiff's cross-motion was improperly filed, that plaintiff failed to show a change in circumstances warranting a review of parenting time, and that plaintiff failed to establish that modifying parenting time was in the children's best interests.

Reversed and remanded for a plenary hearing on the issue of parenting time.

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