On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1000-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued November 13, 2012
Before Judges Parrillo and Sabatino.
Defendant Jeffrey Biancamano appeals from the November 21, 2011 order of the Family Part substantially modifying his parenting time as originally agreed to in a consent order of October 2, 2008, embodied in a final judgment of divorce (FJD). For the following reasons, we reverse the modification order and remand for further proceedings.
Defendant and plaintiff Pamela Biancamano were married on May 24, 2003 and divorced six years later on July 24, 2009, in North Carolina, where they resided during their marriage. They have two children, A.B., born in November 2003, and P.J., born in June 2005. Since October 2005, plaintiff and the children have resided in New Jersey while defendant continues to live in North Carolina.
In anticipation of their divorce, the parties entered into a "permanent consent order on child custody," which was domesticated in New Jersey on April 19, 2010. The agreement provided for residential custody of the children with plaintiff. Defendant, on the other hand, was allowed liberal visitation:
The Defendant shall exercise visitation with the minor children for one weekend per month in New Jersey. In the event said month contains a teacher's workday or other day that the minor children are out of school, the Defendant shall have that long weekend. In the event there is not a long weekend in a particular month, Defendant shall exercise visitation with the minor children in New Jersey from the time school is released on Friday until 5:00 p.m. on the following Sunday.
Defendant was also entitled to visitation on the Thanksgiving and Christmas holidays and, during the summer, three weeks immediately following the last day of school and three weeks before Labor Day. The parties were equally responsible for transporting the children by meeting at a designated halfway point.
Both parties acknowledged in the consent order their children's significant food allergies and pledged to comply with all dietary and nutritional requirements. They were required to communicate with each other and to "make any long-term . . . decisions on behalf of [the] minor children jointly after considering" each other's position. Both parents were to have access to all school, counseling and medical records pertaining to their children.
As recognized in the consent order, both children have medical conditions and, as a result, are on a steady regimen of vitamins and supplements. P.J. has severe eczema that results in painful flare-ups, and chronic diarrhea. Dr. Karen Harum, a neuro-developmental pediatrician in North Carolina, and the children's dietary physician while they resided in that State, diagnosed P.J. with severe allergic reactions to most foods. In fact, Dr. Harum prescribed epinephrine pens for both children in case of extreme allergic reaction. In addition, P.J. remains on a highly controlled "rotation diet."*fn1
In addition to dietary restrictions, A.B. also suffers from sensory dysfunction disorder (SDD), also known as sensory integration disorder (SID), a neuro-developmental condition rendering her unable to process and control her emotions, for which she undergoes specialized therapy treatment. Dr. Richard Reutter, who evaluated A.B., also recommended close monitoring and a "highly structured, consistently applied behavior modification program which emphasizes positive reinforcement."
According to plaintiff, defendant has not had extended parenting time with his children since their July 24, 2009 divorce, by his own volition. Nevertheless, on April 27, 2011, defendant moved to enforce litigant's rights to allow visitation with his children as provided in the consent order, internet communication over Skype, and access to their health and school records. Plaintiff opposed the motion and cross-moved to substantially restrict defendant's parenting time schedule and condition its resumption upon approval by Dr. Harum and A.B.'s therapist, due to changed circumstances resulting from the children's allegedly deteriorating health conditions.
In support of her cross-motion, plaintiff alleged that P.J. has had a number of severe eczema reactions to food allergens, which were fed to him by defendant while in defendant's care, and that defendant has failed to treat P.J.'s reactions properly or give him his vitamins and supplements. On this score, plaintiff offered the certification of Dr. Maria Micale, who evaluated P.J.'s condition and determined that P.J. "needs to be managed on a daily basis with application of the appropriate creams and emollients and with food allergen avoidance." Dr. Micale examined P.J. on two occasions after he had been in defendant's care and found he had a severe eczema reaction, concluding that these reactions were from "exposure to allergens while under his father's care and stopping of his skin care maintenance plan."
As for A.B., plaintiff further contended that defendant refuses to acknowledge and tailor his conduct to meet the child's pervasive needs and, as such, A.B. has been severely distraught after visiting with defendant and no longer wishes to visit with him. As noted, Dr. Reutter evaluated A.B. and recommended therapy and a "highly structured behavior modification program."
In response, defendant denied plaintiff's allegations and claims he is fully aware of the children's dietary needs and abides by their dietary regimen. He stated that he has not been provided with the children's updated medical records and disputes Dr. Micale's opinion that P.J.'s reactions were due to exposure to allergens under defendant's care, claiming that Dr. Micale was simply relying upon plaintiff's accusations. According to defendant, P.J. arrives for ...