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T.J v. T.J

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 7, 2012

T.J., PLAINTIFF-RESPONDENT,
v.
T.J., DEFENDANT-APPELLANT.

On appeal from Superior court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FD-04-3198-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 18, 2012

Before Judges Graves and Koblitz.

Defendant Ted*fn1 appeals from an August 3, 2011 order denying his request to compel an evaluation of his son, Tom, and to require plaintiff Taffy to "unblock her phone number." Ted also appeals a provision in the order granting him access to Tom's school records because it does not specify that those records are to be supplied by Taffy. He further seeks to reverse the portion of the order that permits him to apply for parenting time with Tom only upon completion of anger management and parenting classes as required by prior orders entered in 2007. We affirm in part, reverse in part and remand for the motion judge to consider ten-year-old Tom's current best interests.

The parties divorced in 2007 in Pennsylvania. Tom, who was born in April 2002, is their only child. Prior to the divorce, Ted administered corporal punishment, leaving bruises on five-year-old Tom's buttocks.*fn2 The Commonwealth of Pennsylvania's Department of Public Welfare, Office of Children, Youth and Families, a child protective services agency, substantiated child abuse against Ted for this incident on March 29, 2007.

At Taffy's request, an order was entered in New Jersey on April 18, 2007, limiting Ted's parenting time to eight and one-half hours every Saturday until he completed parenting and anger management classes. On June 1, 2007, the judge entered an unopposed order terminating Ted's parenting time because of his failure to attend the court-ordered classes.

At the August 3, 2011 hearing, Ted informed the motion judge that since the June 1, 2007 order, he had only telephone contact with Tom until April 2011, when, on Tom's ninth birthday, Taffy allowed him to take Tom to a mall to buy a toy helicopter. Ted claims he noticed that his son was walking strangely and believed the child's balance was impaired. According to Ted, Tom was also unable to bounce a ball. The judge denied Ted's application for a court-ordered evaluation based on Taffy's representation that Tom's needs were being addressed at school.

Taffy also indicated to the judge that a worker from the New Jersey Division of Youth and Family Services (Division) told her that the Division might take custody of Tom from her if she allowed the child to visit with Ted. She told the judge that Ted could call her on her cell phone, although it is unclear from the transcript whether the phone blocking Ted's number was the same cell phone on which Taffy suggested he make contact with their son.

On appeal, Ted expresses his disagreement with all of the provisions in the current order.*fn3 Although the motion judge granted Ted access to Tom's school records, he indicates that he is unable to obtain the records because he does not know where his son goes to school. He objects also to the court-mandated classes. Ted maintains that he grew up in Camden, was a New Jersey corrections officer for twenty years, worked at a juvenile facility, is an experienced parent and believes corporal punishment is permissible. He refuses to take the court-mandated parenting and anger management classes and predicts his son will be harmed by the consequent loss of a father-son relationship.

We understand the need to enforce court orders. See R. 5:3-7(a) (detailing the remedies available when a custody or parenting time order is violated). That need, however, should never override the court's concern for the child's best interests. See R. 5:3-7(a)(6). "Our overarching consideration in all matters concerning children involved in the judicial system is 'the best interests of the child.' This principle is embedded in the doctrine of parens patriae, which authorizes the court to intervene when necessary to prevent harm to the child." Segal v. Lynch, 413 N.J. Super. 171, 178 (App. Div.), certif. denied, 203 N.J. 96 (2010).

New Jersey courts have long enforced the policy that children should have a relationship with both parents. See McCown v. McCown, 277 N.J. Super. 213, 218 (App. Div. 1994). The children of parents who refuse to attend court-ordered classes have the right to the strongest parent-child relationship with the most contact that can safely be obtained. See N.J. Div. of Youth & Family Servs. v. D.S.H, ____ N.J. Super. ___, (App. Div. 2012) slip op. at 20.

Notably, after Pennsylvania authorities substantiated abuse, the court limited Ted's contact with Tom to one lengthy, unsupervised daytime visit per week. We are concerned that the subsequent suspension of all in-person contact may have been imposed as a coercive measure to ensure Ted's compliance, rather than as a means to ensure Tom's safety. See V.C. v. M.J.B., 163 N.J. 200, 227-28 (2000) (noting that "[c]ustody and visitation issues between [parents] are to be determined on a best interests standard"). Such an extreme measure punishes the innocent child.

An order denying in-person contact between a parent and a child should be used only in the most dire circumstances. Indeed,

[t]he denial of visitation rights is such an extraordinary proscription that it should be invoked only in those exceptional cases where it clearly and convincingly appears that the granting of visitation will cause physical or emotional harm to the children or where it is demonstrated that the parent is unfit. [Id. at 228-29.]

Thus, a relationship between a child and parent should be curtailed by the court only when in the child's best interests and not as a means to punish a parent or coerce a parent's compliance with a court order. See In re Guardianship of K.H.O., 161 N.J. 337, 350 (1999) (explaining that termination of parental rights is appropriate only to effectuate the best interests of the child and not as a means to punish a parent for past transgressions) (citing In re Guardianship of A.A.M., 268 N.J. Super. 533, 549 (App. Div. 1993) (Kestin, J., concurring)); see also New Jersey Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 178-79 (2010) (concerning the importance of visits to a child's well-being in the context of a child protective services matter); see also N.J.S.A. 9:6B-4(e) and N.J.A.C. 10:122D-1.1(a) (concerning the right of children to visitation when placed outside the home).

We recognize that Ted failed to object to the termination of personal contact with Tom when it was imposed in 2007. We also recognize, as the judge pointed out at the August 3, 2011 oral argument, that the time to appeal the 2007 orders has long since expired. A parenting time order, however, is never final. Modification is permitted because the law recognizes that "the conditions which would satisfy the best interests of the child during all of [his or her] minority [cannot] be conclusively determined in one decree[.]" Borys v. Borys, 76 N.J. 103, 111 (1978). The focus of every judicial determination about custody and parenting time is "on the 'safety, happiness, physical, mental and moral welfare' of the children." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)). Courts must therefore be continually vigilant to ensure that efforts to safeguard a child do not unintentionally have the contrary effect.

We therefore reverse and remand this matter to the motion judge for her to appoint a guardian for the child, and, if necessary, an expert or agency to conduct an investigation, or otherwise obtain current information regarding Tom's best interests. A plenary hearing may also be necessary. See Wagner v. Wagner, 165 N.J. Super. 553, 555 (App. Div. 1979) (explaining that "the 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"). The judge should make certain that contact between Tom and his father is fostered to the maximum extent possible while ensuring Tom's safety and well-being.

The judge should also ensure that Ted has a practical way to carry out her order allowing him to obtain Tom's school records, either through the school or through Taffy. We affirm that portion of the order denying Ted's request to have Tom evaluated. When Ted obtains current school records he may receive new information to allay his fears about his son's well-being. If the information instead provides support for Ted's concerns, he may reapply to the judge for further relief.

The judge should also ensure that Ted has unblocked telephone access to Tom, as the judge seemingly intended, by crafting an order requiring Taffy to provide such access. These issues should be resolved within ninety days.

Affirmed in part, reversed in part and remanded.

We do not retain jurisdiction.


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