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S.M. v. K.M.

Superior Court of New Jersey, Appellate Division

December 26, 2013

S.M., Plaintiff-Appellant,
v.
K.M., Defendant-Respondent.

Argued December 3, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-785-12.

John M. Barbarula argued the cause for appellant (Barbarula Law Offices, attorneys; Mr. Barbarula, on the briefs).

James C. Jensen argued the cause for respondent (Laufer, Dalena, Cadicina, Jensen & Boyd, L.L.C., attorneys; Gregory D.R. Behringer, on the brief).

Before Judges Fisher, Espinosa and Koblitz.

OPINION

KOBLITZ, J.A.D.

We granted plaintiff S.M. (Steve[1]) leave to appeal from a June 10, 2013 order preventing him from having any contact with his two children until the criminal charges against him are resolved. Steve seeks supervised therapeutic visits as recommended by two court-appointed experts. We reverse and remand for a hearing before the Family Part judge at which the prosecutor, criminal defense attorney and two family lawyers may be heard. We arrive at this conclusion relying on Rule 5:12-6 and a directive from the Administrative Office of the Courts (AOC).[2] See AOC Directive 03-09 (Directive) (relating to visitation when an abuse and neglect case is heard in the Family Part while a parent has criminal charges pending).

Plaintiff and defendant K.M. (Kim) were married in 1998 and had two children, Jim, born in 2004, and Mary, born in 2000. On November 18, 2011, plaintiff was served with a temporary restraining order (TRO) at his home based on allegations that Steve placed a loaded BB gun to Jim's head at some point between November 8, 2009 and November 11, 2011 and that he was abusive to Kim. The incident with the BB gun was reported to police by Jim's school after his teacher overheard Jim tell a friend that "daddy put a gun" to his head and "dad is mean." Defendant, K.M. (Kim) admitted during her interview with the court-appointed expert that there is significant ambiguity with the child's statement.

After obtaining Steve's legally registered handgun, police discovered illegal hollow point bullets and plaintiff was later charged with a weapons offense.

On December 1, 2011, Steve filed a complaint for divorce. A January 3, 2012 order reflected the parties' consent to Kim retaining temporary custody of the children and Steve being prohibited from any "form of contact" with Kim. The consent order acknowledged that Kim voluntarily dismissed her TRO, relying on the January 3 no-contact order, and that violation of "the no contact provision of this Order by Plaintiff shall be considered an indicia of an act of domestic violence[.]" The consent order also provided that Steve "shall have visitation with the minor children of the marriage in accordance with the dictates of the Morris County Prosecutor's Office and/or the Court[.]"

In February 2012, the family judge appointed Lee Monday, Ph.D. to provide a visitation and custody evaluation of Steve. A week later, Steve consented to a drug and alcohol assessment to be performed by Gregg Benson, M.A., C.A.D.C., C.M.S.

In March 2012, the Division of Youth and Family Services[3](Division) sent a letter to Kim explaining that it investigated allegations of abuse and neglect against Steve and "determined that child abuse was substantiated." The Division took no further action.

On June 4, 2012, Dr. Monday submitted a detailed, single-spaced, twenty-one page custody and visitation report with the court after interviewing all members of the family and administering psychological tests to Steve.[4] Kim told Dr. Monday that "[h]er children have clearly stated that they do not want any relationship with their father. They are traumatized and fearful of him. [Kim] does not believe that it would be best for them to even have supervised visits with [Steve]." The report concluded that the case "is essentially a classic he said, she said[]" in which Kim and Steve provided starkly different accounts of Steve's drinking habits and his relationship with their children. Dr. Monday found it noteworthy that the children referred to their relationship with Steve using the collective "we, " which, in the expert's opinion, made it "difficult to tell if it was truly the child's individual perception of the father or if it is a joint perception shared with the mother." "The goal for this family[, ]" Monday opined, "is for [Steve] and his children to have a positive relationship." He also noted that the children must feel safe and Steve cannot drink alcohol in their presence. Dr. Monday recommended that the children see a psychologist or counselor with expertise in "high conflict divorce cases" and that Steve should join the sessions once the children develop rapport with the counselor. "What would follow depends on how these sessions go[, ]" the report stated.

On August 3, 2012, the criminal judge maintained the "no contact" condition of bail, explaining that he would "follow a ruling from the family judge on that issue." On September 25, the family judge denied Steve's request for therapeutic visitation, finding that it would ...


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