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Weiss v. Weiss

November 24, 2010

DEBORAH WEISS, PLAINTIFF-RESPONDENT,
v.
ERIC S. WEISS, DEFENDANT-APPELLANT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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