October 19, 2011
RONALD TESCHNER, PLAINTIFF-APPELLANT,
KELLY TESCHNER, DEFENDANT-RESPONDENT
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-1261-06. Ronald Teschner, appellant pro se. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 4, 2011
Before Judges Yannotti and Kennedy.
Plaintiff Ronald Teschner appeals from an order of the Family Part dated August 31, 2010 denying his motion for "visitation, communication and contact" with his two children who were thirteen years of age and ten years of age, respectively, at the time the order was entered. We affirm.
Plaintiff's motion was supported by a terse, two-and-one-half page certification without any exhibits. Plaintiff alleges in his certification that he is incarcerated at Bayside State Prison and had been incarcerated "since [he] was sentenced on June 15, 2007, to a term of eleven years with 85% parole ineligibility." He states that he was married to defendant from 2000 to 2007 and that "[they] ha[d] been divorced since September 2007." He adds that he and defendant had two children and that he "had a strong bond and loving relationship with his children prior to being incarcerated."*fn1
No records, certifications or documents of any type were submitted to court pertaining to the alleged judgment of divorce between the parties or to the criminal conviction for which plaintiff was sentenced. Plaintiff proffered no information on prior orders affecting custody and visitation and failed to set forth any facts regarding his communications or attempts to communicate with his children.
On August 31, 2010, the trial court entered an order denying the motion for "visitation, communication and contact with his children" with a notation reading as follows:
No information why [plaintiff] is incarcerated, whether or not it had anything to do with the children or if there is any order of no contact with the children.
On appeal, plaintiff claims that the trial court erred in denying him a plenary hearing on his motion to compel visitation and in failing to make sufficient findings of fact which support the denial of his motion.
On issues of custody and visitation, "[t]he question is always what is in the best interests of the children."
P.T. v. M.S., 325 N.J. Super. 193, 215 (App. Div. 1999) (quoting Giangeruso v. Giangeruso, 310 N.J. Super. 476, 479 (Ch. Div. 1997)). Where the parent seeking visitation is incarcerated, many factors must be considered by the trial court in ascertaining the best interests of the children, in addition to those factors ordinarily considered when making such a determination, and any visitation decision "requires the application of a high degree of care, factual exploration, deliberation and sensitivity to personal and family dynamics and motivations." Fusco v. Fusco, 186 N.J. Super. 321, 327 (App. Div. 1982).
Therefore, it is essential for an incarcerated parent seeking visitation to provide to the trial court a complete factual background about the parties, their relationship, their children and issues affecting custody and visitation. While a plenary hearing is ordinarily required to enable the trial court to identify the best interests of the children involved in a visitation dispute, Id. at 327; Wagner v. Wagner, 165 N.J. Super. 553, 555 (App. Div. 1979), certif. denied, 85 N.J. 93 (1980), nonetheless an applicant who seeks a plenary hearing must first "show there is a genuine and substantial factual dispute regarding the welfare of the children." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007); Faucett v. Vasquez, 411 N.J. Super. 108, 127-28 (App. Div. 2009), certif. denied, 203 N.J. 435 (2010); see also R. 5:8-6 (requiring the court to "set a hearing date" if it "finds that the custody of the children is a genuine and substantial issue").
Here, plaintiff merely states that he is incarcerated for a crime and wishes to visit with his two minor sons. Plaintiff states no facts pertaining to his marriage or relationship with defendant, other than to note they were married from 2000 to 2007; provides no records pertaining to his divorce from defendant or to custody or visitation; fails to set forth facts regarding his communications or attempts to communicate with his children; and, generally, fails to provide any factual predicate upon which the court could base a reasoned order for visitation. The need for such a factual basis is especially acute here, where plaintiff is incarcerated in state prison for what is obviously a first degree crime, the children are quite young and there are suggestions in plaintiff's appellate brief that defendant has a restraining order against him. Without such a factual background, no court could reasonably begin to assess the "best interests" of the children.