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Alyssa Ferstenfeld v. Mitchell Ferstenfeld

April 8, 2011

ALYSSA FERSTENFELD, PLAINTIFF-APPELLANT,
v.
MITCHELL FERSTENFELD, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1311-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 14, 2011

Before Judges Grall and Coburn.

Plaintiff mother and defendant father are the divorced parents of a seven-year-old boy. Plaintiff appeals from a post-judgment order granting defendant unsupervised parenting time and denying her request for sole custody. She contends that the judge failed to address her applications for enhanced supervision and sole custody and erred by granting defendant's motion for unsupervised parenting time without a plenary hearing. We reverse because the judge's decision was based on a mistaken assumption about the basis for the order she modified.

In 1988, when defendant was seventeen years old, he sustained a severe brain injury in a car accident. Despite the severity of his injury, with therapy and rehabilitation he was able to graduate from high school and college. Since 2000, he has been steadily employed by a payroll services company.

The parties married in 2001, and their son was born in February 2004. In 2005, defendant was experiencing low-level seizures following a change in his medication, and he underwent a neuropsychological evaluation at Mt. Sinai School of Medicine. His cognitive abilities in thirty-one categories were assessed, and his rankings were as follows: four, superior to high average; eighteen, average; four, low average; and five, borderline to impaired. The abilities ranked lowest were overall processing speed; inhibiting automatic response; gross motor skills, hands; fine motor skills, hands; and rapid switching from one idea to another. His diagnoses were cognitive disorder and obsessive compulsive disorder. Medication adjustment, "psychoeducation" to maximize cognitive and emotional functioning and couples' therapy were recommended. Additionally, the doctors suggested defendant have "a repeat neuropsychological evaluation within the next several years," to monitor "stability or change in his overall cognitive functioning."

Plaintiff filed the divorce complaint in 2006, and the parties reached an agreement that was incorporated in an amended and a second amended final judgment of divorce entered in 2008. Pertinent here, they agreed to joint legal custody with plaintiff having primary residential custody. Defendant was to have parenting time every Sunday from 10:00 a.m. through 4:00 p.m., supervised by his parents until the parties agreed on another supervisor. Because the parties' son had exhibited some behaviors characteristic of children with autism, the agreement provided for a two-hour extension of defendant's parenting time on the condition that he and his parents complete a workshop at the Center for Outreach Services to the Autism Community (COSAC). The agreement also entitled defendant to parenting time during his son's music class on Wednesday evenings.

The final iteration of the parties' agreement contemplates unsupervised parenting time if defendant's health and interaction with the child permit. To address these dual concerns, defendant's neurologist would report on any seizures defendant might have between March 10, 2008 and March 10, 2009, and Judy Leggett, a masters-level certified social worker, would supervise defendant's parenting from August 10, 2008 until March 10, 2009 and report on the father-son interactions. The parties agreed:

If [defendant] is seizure free and if Judy Leggett's report is positive, [defendant] shall be given unsupervised visitation parenting time. [Plaintiff] will have to file an application if she wants supervised parenting to continue. If the report is negative or [defendant] suffers from seizure(s), then supervised parenting time shall continue until such time as a hearing can be conducted.

Defendant also agreed not to drive with the child in the car.

After March 10, 2009, defendant moved for unsupervised parenting time. By that time, defendant, his parents and his girlfriend had all successfully completed the workshop offered by COSAC. Defendant's neurologist advised that defendant had not had a seizure since December 2007, and his seizure condition was "very well controlled with current medication." A certified abstract of defendant's driving record showed that his "medical interval reporting-license" was in "good standing," despite car accidents in October 2005 and November 2006, and a speeding ticket in March 2006.

Leggett testified at the motion hearing and reported the following. Defendant had friends and family members who cared about him and the child. Generally, one or more of those adults were present when defendant visited his son in her presence. Defendant and the child played together, and, in Leggett's opinion, the child loved him and enjoyed the visits. Defendant, however, took more time than normal to do things for the child - like helping him with his shoes and securing him in a car seat. When the boy needed something, he looked to his grandparents rather than defendant, and the child has asked Leggett who would be with him and his dad when she was no longer supervising their visits.

Leggett concluded that defendant did not need "in-line-of-sight" supervision. Nonetheless, in her opinion defendant needed another adult with him during his parenting time to assist if needed, at least until the child was old enough to take care of himself. Leggett indicated that her ...


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