On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FV-21-0437-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 24, 2012
Before Judges Sabatino and Maven.
Defendant S.T.C., who is incarcerated serving a twenty-year sentence, appeals from a Family Part order denying his motion for telephonic and monthly video conference visitation with his three and four year-old children. We affirm.
The following facts are adduced from the record. Defendant and plaintiff were involved in a dating relationship that produced two children, born in August 2007 and September 2008. In January 2009, plaintiff obtained a temporary restraining order (TRO) against defendant under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. At the time the TRO was issued, the children were sixteen months old and four months old.
On February 5, 2009, plaintiff obtained a Final Restraining Order (FRO) against defendant which, among other things, granted her temporary sole legal and physical custody of the two children and established defendant's child support obligation. The FRO was subsequently amended on February 20, 2009, to provide defendant supervised parenting time.
On March 20, 2009, defendant was arrested for committing the offenses for which he is sentenced.*fn1 Plaintiff subsequently filed a motion to suspend defendant's parenting time. On June 4, 2009, the Family Part granted plaintiff sole legal and physical custody of the children and ordered that defendant have no contact with the minor children but that he may send birthday cards to the children, subject to the review of the cards by plaintiff for appropriateness.
On June 4, 2010, the court heard the parties' cross-motions regarding parenting time and granted defendant non-contact parenting time with the children at the county jail one weekend day per month, if visits were permitted. On June 22, 2010, the court issued an order confirming parenting time at the county jail once per month on either Saturday or Sunday. On August 23, 2010, the parenting time order was amended to change the visit day to the second Monday of each month and designate plaintiff's mother or another person of plaintiff's choice as the supervisor.
Plaintiff's mother took the children to visit defendant in September and October 2010. The November 2010 visit was cancelled due to defendant's placement in solitary confinement for a prison infraction. On November 6, 2010, defendant was charged with contempt for violation of the restraining order, N.J.S.A. 2C:29-9(b), for sending letters to plaintiff and her mother, who is also a protected party under the FRO. The December 2010 visit did not occur.
Thereafter, plaintiff filed a motion to indefinitely suspend parenting time so long as defendant was incarcerated "out of sincere, extreme concern for the welfare and best interests of our children due to the irreparable psychological and emotional harm that they will suffer by establishing or maintaining any sort of parental relationship with the defendant through traumatizing prison visitation at such a very young age." Plaintiff's motion was supported by a certification by her mother, as supervisor, attesting to the children's conduct during the jail visits. The grandmother reported that the children, who were to speak with defendant through the glass using the telephone, were restless, played with the telephone, did not speak to defendant and cried for their mother as they tried to leave the room. Defendant filed a cross-motion to enforce litigant's rights for parenting time visits. In an order dated January 20, 2011, the court granted plaintiff's motion suspending defendant's parenting time visits but allowed defendant to continue sending greeting cards to the children for Christmas, Easter, Valentine's Day and their birthdays, as well as the letters subject to plaintiff's review.
Defendant filed a motion on March 18, 2011, to modify the parenting time arrangement and reinstate the monthly prison visits. Plaintiff subsequently filed a cross-motion to continue the indefinite suspension of defendant's parenting time with the children, as well as any contact with defendant for as long as he was incarcerated.
On April 28, 2011, the Honorable John J. Coyle, Jr., J.S.C., conducted a plenary hearing. The judge considered the testimony of both parties and their certifications, and on May 17, 2011, issued a written opinion and order denying defendant's application for parenting time without prejudice. The court found plaintiff's testimony to be truthful and ...