February 28, 2017
appeal from the Superior Court of New Jersey, Chancery
Division, Family Part, Atlantic County, Docket No.
P. Matez argued the cause for appellant in A-3230-14 and
respondent in A-3256-14 (Borger Matez, P.A., attorneys; Mr.
Matez, on the briefs).
Patricia A. Darden argued the cause for respondent in
A-3230-14 and appellant in A-3256-14 (Law Offices of Patricia
A. Darden, attorneys; Ms. Darden, on the briefs).
Judges Messano, Suter and Guadagno.
E.S. and defendant H.A. are the parents of R.A. (Richard),
born in 2004. The parties separated in December 2008,
and after a contentious period during which plaintiff alleged
acts of domestic violence (DV), and defendant successfully
litigated against her claims, the marriage ended in a consent
judgment of divorce (JOD) filed on September 8, 2009. The
parties were unable to resolve issues of custody and
parenting time prior to entry of the JOD.
in 2009, plaintiff had contacted the Division of Child
Protection and Permanency (DCPP or the Division) regarding
Richard's inappropriate, overtly sexual behavior. The
Division began to investigate whether defendant had sexually
abused Richard. In April 2009, the parties entered into a
consent order in the matrimonial action that restored
defendant's parenting time, which had been suspended
during the DV proceedings. However, a subsequent domestic
violence complaint resulted in a temporary restraining order
and renewed suspension of defendant's parenting time.
the court dismissed the last of plaintiff's domestic
violence complaints following a multi-day trial that also
ended in September 2009, plaintiff thereafter successfully
sought an order to show cause temporarily suspending
defendant's parenting time until the judge could review
the Division's records regarding its investigation. On
October 5, 2009, after completing her review, the judge
dissolved any restraints and ordered resumption of
defendant's parenting time in accordance with the April 2
0 09 order.
November 10, 2009, the Division advised defendant its
"investigation determined that abuse was substantiated
for sexual molestation with regard to [Richard], " and
that "[y]ou have been identified as a person responsible
for the abuse." Defendant apparently sought an
administrative appeal because, on February 19, 2010, the
Division advised him the "finding of abuse" as to
one incident, July 27, 2009, was overturned. However, the
Division's finding of abuse as to a second incident on
July 6, 2009, remained in place. Defendant filed a request
for further review before the Office of Administrative Law
plaintiff sought reconsideration of the denial of her earlier
request to suspend all parenting time. By July 2010, the OAL
hearing still had not taken place, nor had the Division
initiated a Title 9 or Title 30 action. The Family Part judge
overseeing the matrimonial action entered an order setting a
plenary hearing for October "on the issue whether it is
in the best interests of . . . [Richard] that parenting time
with his father . . . should resume."
hearing took place, as issues and disputes continued to arise
regarding expert witnesses. In January 2 011, the judge
appointed Dr. Jennifer L. Perry, Psy.D., as the court's
expert, and charged her with evaluating "when and in
what manner it w[ould] be in the best interest of . . .
[Richard] to resume parenting time with his father . . .
." The parties' litigious conduct continued; it is
unnecessary to detail the reasons for, or results of, various
court appearances that followed.
February 2012 order, the judge provided copies of Dr.
Perry's reports to counsel, and the parties again
appeared before the court on April 2, 2012. Although the
order entered that day indicates the judge took "sworn
testimony, " there was no testimony. After listening to
the arguments of counsel, the judge prohibited defendant
"from any and all contact with" Richard, "with
the exception of the supervised visitation with Dr. Perry or
any other visitation ordered by th[e] court." The judge
permitted the parties to engage in discovery and set new
dates for a plenary hearing in July 2012.
2 012, defendant withdrew his administrative appeal of the
Division's substantiated finding of abuse. No plenary
hearing took place during the summer of 2012. In November, a
different Family Part judge took over the litigation, and a
plenary hearing began in January 2013 and continued on
non-consecutive days until May. The parties thereafter
submitted written proposed factual findings and legal
November 22, 2013, the judge issued an oral opinion on the
record explaining the reasons supporting his order filed that
day (the November 2013 order). The record reflects only
defense counsel was present; plaintiff's counsel had a
court appearance in another county, was running late and the
judge decided not to wait.
judge found by clear and convincing evidence, that defendant
had sexually abused Richard. The order granted plaintiff sole
legal and physical custody of Richard and denied defendant
parenting time. Section 3 of the order required that, before
making any application for parenting time, defendant
shall comply with the requirements set forth by Dr. Jennifer
Perry in her testimony, which include:
a. Admission of wrongdoing;
b. A psycho-sexual evaluation by a professional specializing
in same; and
c. Individual therapy.
Section 4, the order further provided that, "[i]f and
when the [d]efendant completes the aforementioned
requirements, he may apply for consideration of parenting
time through Therapeutic Management of Reunification
oral opinion denying both parties' requests for counsel
fees, the judge noted plaintiff's counsel's request
was "vague, " and he did not "know whether
she's going to do something. Some post judgment motion
probably . . . ." The November 2013 order simply denied
both parties' requests for counsel and expert fees.
sought reconsideration, asking the order specifically include
the judge's finding that defendant had sexually abused
his son, and modifying the order to clarify that her request
for fees was denied without prejudice. The judge granted the
motion for reconsideration and entered the January 10, 2014
order (the January 2014 order) that stated defendant
"sexually abused" Richard, and denied
plaintiff's request for fees without
prejudice. The January 2014 order reiterated the
requirements of the November 2013 order imposing
preconditions on defendant's future applications for
submitted a request for fees. Defendant's opposition
never asserted an inability to pay. Rather, defendant claimed
plaintiff was solely responsible for the plenary hearing,
because she refused to accept Dr. Perry's initial
recommendation of TMR. Defendant asserted the "proper