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S.M v. O.M

June 4, 2012

S.M., PLAINTIFF-APPELLANT,
v.
O.M., DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1225-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 24, 2012

Before Judges Messano and Yannotti.

Plaintiff appeals from an order entered by the Family Part on April 1, 2011, which allows defendant to have unsupervised parenting time with the parties' minor child at specified times. We reverse.

The parties were married on October 28, 2004. They had one child, L.M., who was born on August 19, 2006. The marriage was dissolved by a final judgment entered by the trial court on March 6, 2009. Among other things, the judgment provided that the parties would share joint legal custody of L.M., with plaintiff designated as parent of primary residence and defendant designated the parent of alternate residence. In addition to the judgment, the court entered an order dated March 6, 2009, which stated that defendant would have parenting time every other Friday, from between 6:00 p.m. and 6:30 p.m., until Monday morning, between 5:30 a.m. and 6:00 a.m.

In June 2009, plaintiff filed an order to show cause seeking a modification of the March 6, 2009 order to grant her temporary custody of L.M. In her supporting certification, plaintiff asserted that the child began to cry and scream when it was time for defendant's parenting time. She also claimed that the child said defendant hit her, shook her and "threw a rock" at her.

Plaintiff stated that she reported her allegations to the police in Pennsylvania, where she resides, as well as the Pennsylvania Department of Health Services (DHS) and the New Jersey Division of Youth and Family Services (DYFS). She also stated that she had taken the child to a hospital and a doctor referred her to the child's primary physician, a neurologist and a behavior clinic for treatment. It appears that the trial court denied plaintiff's application.

Several days later, plaintiff filed a motion seeking modification of the parenting time order, including a suspension of the child's overnight visits with defendant pending completion of DYFS's investigation and supervision of defendant's parenting time by a third party, such as the child's grandparents. Plaintiff additionally sought an order compelling defendant to undergo a psychological evaluation, an evaluation of the child and in camera review of DYFS's records.

Defendant opposed the motion and filed a cross motion seeking enforcement of the provisions of the March 6, 2009 order pertaining to parenting time. In his certification, defendant stated that DYFS had investigated plaintiff's previous, unrelated allegations, found them to be unfounded, and terminated its involvement in the matter. Thereafter, DYFS visited defendant again and said that plaintiff had alleged that he had physically abused his daughter. Several days later, DYFS returned to defendant's home and said that plaintiff had made allegations of sexual abuse. Defendant denied the allegations. He also said that, since June 8, 2009, plaintiff refused to allow him to have any contact with his daughter.

The parties agreed to the entry of an "interim" consent order dated August 18, 2009, which stated that defendant would have supervised visits with the child on alternate weekends. The order additionally stated that, in the event the DYFS investigation resulted in a "finding of 'unfounded' on all prior referrals," the requirement for supervised visits would be "immediately vacated without [the] need of a future court order."

Plaintiff then filed a supplemental certification in further support of her motion, and in opposition to defendant's cross-motion. Plaintiff reiterated her allegations that defendant may have physically and sexually assaulted the child. She stated that L.M. was crying and insisting that she did not want to see her father.

Plaintiff also stated that since the child was returned to her in June, her behavior had changed. The child had refused to go to school. She also had refused to participate in "Jr. ...


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