I.O. v. M.C.
| Decision Date | 21 November 2018 |
| Docket Number | DOCKET NO. A-1022-17T4 |
| Parties | I.O., Plaintiff-Appellant, v. M.C., Defendant-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Accurso and Vernoia.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FD-20-1488-05.
Ziegler, Zemsky & Resnick, attorneys for appellant (Steven M. Resnick, of counsel and on the briefs).
M.C., respondent pro se.
Plaintiff I.O., the father of a fourteen-year-old son, M.O. (Mark),1 he shares with defendant M.C., appeals from Family Part orders granting defendant's motion to modify a March 17, 2016 parenting time order and directing that the parties develop a schedule for unsupervised parenting time by defendant.2 Because we conclude the court did not abuse its discretion by determining there were changed circumstances supporting defendant's request for a modification of the March 17, 2016 order, and the evidence supports the court's determination it is in Mark's best interests to have unsupervised parenting time with defendant, we affirm.
Plaintiff and defendant dated prior to Mark's birth in 2003. Following Mark's birth, the parties engaged in ongoing and contentious litigation overcustody and parenting time issues. In I.O. v. M.C., No. A-5349-12 (App. Div. Sept. 2, 2014) (slip op. at 2-11, 21), we summarized their litigation history and affirmed a June 28, 2013 Family Part order transferring legal and residential custody of Mark from defendant to plaintiff and temporarily restricting defendant to one hour of supervised parenting time per week. We relied in part on the trial court's findings that defendant "was unwilling, and perhaps psychologically incapable, of engaging in co-parenting in any meaningful fashion," id. at 17, and that her ongoing refusal to comply with court orders "demonstrated a refusal to co-parent and agree on matters related to Mark," id. at 11.
We also noted the June 28, 2013 Family Part order required that defendant undergo a psychological evaluation for the purpose of "establish[ing] 'a comprehensive parenting time plan.'" Id. at 20. We determined that provision of the order was interlocutory and therefore not before us, but noted the trial court "was clearly hoping to expand [defendant's] parenting time in the future" and "[d]oing so should be done on a priority basis, assuming of course, appropriate cooperation from" defendant. Ibid.
Defendant subsequently underwent a psychiatric evaluation. In his report, the psychiatrist opined that defendant could safely parent Mark withoutsupervision and recommended reinstatement of unsupervised parenting time, subject to two caveats: defendant must demonstrate an ability to communicate with plaintiff verbally and electronically in a civil manner, and she must not undermine plaintiff's relationship with Mark.
In March 2015, the court considered the psychiatrist's report, the parenting time supervisor's testimony supporting unsupervised parenting time for defendant, and statements made by then eleven-year-old Mark during an in camera interview of the child. The court entered a March 17, 2015 order granting defendant unsupervised parenting time conditioned on the requirements that she communicate with plaintiff concerning all issues related to Mark and not discuss the case with Mark, undermine plaintiff's parental authority or remove Mark from New Jersey without plaintiff's express written authorization. The order provided that if defendant violated any of its terms, supervised parenting time would be immediately reinstated.
In May 2015, the court entered an order expanding defendant's parenting time to include overnight visits. The court's order continued the conditions imposed in the March 17, 2015 order, including the prohibition against defendant removing Mark from the state without plaintiff's written consent.
As the result of letters sent to the court by the parties concerning parenting time issues, the court conducted a hearing on December 10, 2015. The court determined defendant took Mark on a weekend trip to Virginia without plaintiff's consent in violation of the March 17, 2015 and May 2015 orders, and her violation of the orders was not in Mark's best interests. The court found defendant's violation of the orders and refusal to communicate directly with plaintiff concerning Mark constituted a substantial change in circumstances warranting modification of defendant's parenting time. The court entered a December 10, 2015 order eliminating defendant's overnight parenting time, but permitting continued unsupervised parenting time subject to specified conditions, including a prohibition against removing Mark from the state without plaintiff's written consent.
On March 17, 2016, the court conducted a hearing on defendant's motion for an order compelling Mark's use of both her and plaintiff's surnames, prohibiting plaintiff from recording Mark and plaintiff's telephone conversations, modifying the parenting time schedule and providing make-up parenting time. The court denied defendant's motion.
The court also heard argument on plaintiff's cross-motion for reinstatement of supervised parenting time. The court found defendant violatedthe prior orders by failing to communicate directly with plaintiff regarding Mark, continuously calling the Division of Child Protection and Permanency instead of communicating with plaintiff, and by involving Mark in matters that should be addressed by defendant and plaintiff. The court found defendant's actions caused Mark harm and that she could not be trusted to have unsupervised parenting time.
The court entered a March 17, 2016 order directing that defendant's parenting time be supervised and limited to four hours per week. The court ordered that if the parties were unable to agree on a supervisor, Resolve Community Counseling Center (Resolve) would supervise defendant's parenting time. The parties did not agree on a supervisor, and defendant's parenting time was thereafter supervised at Resolve. The court denied defendant's motion for reconsideration.
On March 23, 2017, defendant filed a pro se motion seeking "clarification on an end date for supervised visitation" and claiming that the orders limiting her parenting time and requiring that it be supervised were punitive. Defendant requested an order reinstating her "parenting time, unsupervised or with a family member to supervise." Defendant also asserted that Mark "is [thirteen] years old and can determine when he wants to visit with his mother and family" andthat Mark "states [plaintiff] does not allow him to call [defendant] and discourages him from contacting" her.
During the July 13, 2017 oral argument on the motion, the court asked about Mark's preferences concerning his mother's supervised parenting time, and plaintiff agreed the court could interview Mark. During the court's subsequent in camera interview of the child, Mark stated he is thirteen years old, entering the eighth grade and wants to spend more time with his mother, including on alternate weekends and during vacations. He also indicated that the presence of the supervisor during defendant's parenting time is annoying, uncomfortable and unnecessary. He feels comfortable and safe with his mother and wants unsupervised parenting time with her.
Over two days in August 2017, the court held a plenary hearing on defendant's application for a modification of the May 17, 2016 parenting time order. The court found there were changed circumstances requiring a plenary hearing as to whether it was in Mark's best interests to modify the parenting time order. More particularly, the court determined the changed circumstances included the fact that Mark was one-and-a-half years older than when the March 17, 2016 parenting time order was entered, and Mark "made it very clear" duringthe court's interview that he preferred unsupervised parenting time with defendant.
During the plenary hearing, defendant testified and presented the testimony of a marriage and family therapist from Resolve who supervised some of defendant's parenting time. Plaintiff also testified at the hearing.
Following the hearing, the court issued a detailed written opinion finding plaintiff and defendant had a limited ability to communicate and cooperate in matters related to Mark and that both parties contributed to the problem. The court noted the prior history of the litigation between the parties, but determined that plaintiff and defendant are fit parents who care deeply for Mark, who is thriving socially and in school. The court further found that Mark is entering the eighth grade and is of an age where "his preference in terms of moving forward with parenting time should be a significant factor in the [c]ourt's determination." The court found Mark felt safe with plaintiff and defendant, uncomfortable with continued supervised visitation and desirous of spending unsupervised overnight parenting time. The court determined Mark was no longer the same child who had been interviewed by the judges who issued prior parenting time orders and was now "emotionally and logically mature."
The court further determined that, "with appropriate procedures put into place, [there] is no longer a risk . . . that [Mark's] or either parent's safety is now, or ever has been, in jeopardy." The court found defendant raised Mark for the first eight-and-a-half years of his life and that, during the following five years, her time with the child was limited because she could not communicate with plaintiff and follow court orders. The court determined that "[n]one of her behaviors have ever demonstrated that she is...
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