NJ APPEAL DECISION - HARMING KIDS FOR PROFIT IN FAMILY COURT a6182-10

7/31/2019 NJ APPEAL DECISION - HARMING KIDS FOR PROFIT IN FAMILY COURT a6182-10

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In this post-divorce appeal, plaintiff L.S., formerly L.C.,

("plaintiff" or "the mother") appeals from orders of the Family

Part dated December 22, 2010, and August 1, 2011, that modified

the parenting time arrangements for the parties' three children.

She argues that the court violated her due process rights by

increasing the parenting time of defendant V.C. ("defendant" or

"the father") and by changing the residential custody status of

two of the children without holding an evidentiary hearing. We

disagree that the Family Part violated plaintiff's rights and

affirm the orders.

The case has a troubling history. The parties were married

in 1999, separated in 2005, and divorced in 2007. They have two

daughters, now ages twelve and nine, and one son, age seven.

Since the parties' separation, the older daughter has adamantly

rejected having a relationship with her father. The other two

children have more normal relationships with both parents in the

midst of a highly disputatious divorce, but they, too, have

exhibited negative effects of the hostility between their

parents.

The father has sought to rehabilitate his relationship with

the older daughter through therapy and reunification strategies,

but those efforts have been unsuccessful so far. The mother

states that she wants her children to have better relationships


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with their father, but she is immutably distrustful of him, and

anyone else who does not view the situation as she does and

therefore has sided with him in plaintiff's eyes. Plaintiff

accuses her ex-husband of domestic violence against her and

reports judicial support of that accusation, although a final

adjudication of domestic violence was never entered. A

temporary restraining order that she obtained at the time of

their separation was dismissed after a contested hearing.

She also accuses him of physical abuse of the children, but

investigations by the Division of Youth and Family Services

(DYFS) have not resulted in any such finding. Neutral evidence

has failed to corroborate the mother's accusations, including

video recordings from security cameras in the father's home and

the statements of observers hired for the express purpose of

monitoring the father's visits with the older daughter. The

father has a history of failing to control his anger, and he has

displayed insensitivity to his children's needs and feelings,

but the substantial weight of evidence indicates verbal and

minor physical excesses by the father, not physically abusive

conduct toward the children.

Distressingly, the children are deeply involved in the

acrimony and have become active participants in their parents'

animosity. They misbehave and are disrespectful and sometimes


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physically aggressive toward their father. The older daughter

has defied her father and then reported physical and verbal

abuse that is contradicted by the video evidence and the

accounts of third parties. The younger daughter has manifested

signs of joining in the older daughter's campaign against her

father out of a sense of loyalty to her sister. The boy has

misbehaved and shown aggression of various kinds.

The mother's pro se brief on appeal is coherently written,

but it is not an appropriate document for purposes of

litigation. It is mostly a lengthy diatribe making unfounded

accusations of error or corruption against all who do not agree

with her. She justifies her singular point of view by the need

to protect herself and the children against violence and abuse.

But instead of arguing from the record to prove her allegations,

she presents a personal narrative of perceived wrongs by her

ex-husband, by her ex-husband's attorneys, by the court-

appointed psychologist assigned to evaluate the family and to

propose a therapeutic parenting plan, by several other

therapists, by the two judges who have heard parts of the case

and have both now recused themselves because of actions taken by

her, by the retired judge who serves as parenting coordinator,

by the guardian ad litem assigned by the court to protect the

legal rights of the children, by the professional observers who


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have been engaged to make certain that the older daughter is not

mistreated while in the company of her father, by DYFS which has

not substantiated abuse, by the nanny who helps care for the

younger children during the father's parenting time, and by the

father's father who admittedly slapped the six-year-old boy when

he repeatedly called his grandfather a vulgar name containing

the f*** word.2

Most of the factual statement in plaintiff's brief is not

supported by citation to the record, a requirement of our

appellate rules of procedure, R. 2:6-2(a)(4). Where citations

to the appendix or transcript appear, they are often references

to a phrase or statement taken out of context to mean something

2 After this appeal was filed, the Assignment Judge for EssexCounty transferred the case to Hudson County. Under the docketnumber of a separate appeal (No. A-0862-11) from a later orderof the Family Part appointing a guardian ad litem for thechildren, plaintiff has moved (M-4855-11) to remand the matterto the Hudson County Family Part so that she may file a motionto set aside the financial settlement reached as part of thejudgment of divorce entered five years ago. She claims she hasdiscovered evidence that her ex-husband made fraudulentstatements regarding his ownership of assets. We now deny themotion to remand in the separate appeal. With our decision inthis appeal, only the separate appeal may be a jurisdictionalbar to proceeding in the Family Part as plaintiff seeks to do.See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.366, 376 (1995); R. 2:9-1(a). We see no basis to delaydisposition of that appeal for the reasons stated in plaintiff'smotion.


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through extensive personal contact as well as the study of

recorded information, he spoke to the family's therapists, the

professional observers of the father's parenting time, family

members of both parties, the nanny, school personnel, and

persons as far removed from the divorce case as the children's

dentist and their karate teacher. Our reading of Dr.

Brodzinsky's report indicates an exhaustively detailed account

of the doctor's findings, comprehensively explained conclusions

and recommendations, and no favoritism in assessing the parents'

joint responsibility for the family's troubles.

Plaintiff's accusations against the retired judge who has

been engaged by the parties to serve as parenting coordinator

are particularly vituperative. Both parties originally

consented to have the retired judge serve as parenting

coordinator and they agreed that the father would pay his fees.

Yet as events developed and the parenting coordinator did not

adopt her views, plaintiff began and has continued to accuse him

of bias, overreaching, and corruption, in part because he is

paid by her ex-husband.

She also claims that Judge Troiano abdicated his

responsibility to make decisions to the parenting coordinator

and the expert psychologist. See P.T. v. M.S., 325 N.J. Super.

193, 216 (App. Div. 1999). Our review of the record indicates


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otherwise. In a very difficult case, the judge utilized the

services of those professionals to gather and report information

about the endless fighting between the parents and the

consequences upon the children's best interests. He reviewed

their reports and considered their recommendations. The record

leaves no doubt in our minds that Judge Troiano carefully

considered the issues and potential remedies and personally made

decisions within the sphere of his authority regarding the

parenting disputes.

Having said all that, we do find that plaintiff has a

colorable issue on appeal that requires more detailed

discussion. Did Judge Troiano properly dispense with an

evidentiary hearing and instead rely on the report and

recommendations of Dr. Brodzinsky in ordering modification of

the parenting arrangement and schedule? In the circumstances of

this case, we are confident that he did.

The judgment of divorce granted the parties joint legal

custody of the children and designated the mother as the parent

of primary residence. The father was granted parenting time

with all three children on alternate weekends, alternate

Mondays, and every Wednesday night. As we understand the

parenting schedule, he was to have five overnights with the

children for every two-week period. The older daughter,


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however, refused to spend time with her father. Individual and

family therapy was ordered to attempt to resolve the older

daughter's resistance.

During the months that the divorce case was pending and

after a judgment of divorce was entered, the parties had many

disputes about the details of sharing time with the children. A

parenting coordinator was appointed, and his role and function

were expressly included within the terms of the judgment of

divorce. Two years after the judgment was entered, by consent

order dated August 21, 2009, the parties agreed to utilize the

services of the retired judge as a replacement for the prior

parenting coordinator. In 2009, the court ordered that Dr.

Brodzinsky investigate and evaluate the circumstances of the

parenting difficulties and recommend a reunification strategy

with the older daughter. In accordance with the first step of

Dr. Brodzinsky's initial report dated September 15, 2009,

arrangements were made for the father to have visits with the

older daughter once per week on Wednesday evenings. A

psychologist was hired as a neutral observer to be present

during the visits and to keep detailed notes of what occurred.

The visits were typically in the father's home with the younger

children also present.


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By order dated December 22, 2010, Judge Troiano increased

to two evenings per week the father's parenting time with the

older daughter, still under the watch of a professional

observer. The judge also ordered an increase in the father's

parenting time with the two younger children, adding one more

overnight every two weeks for the purpose of reducing the number

of transitions of the two younger children between the parents.

Because plaintiff opposed the increased parenting time and made

accusations against the father regarding the children's safety

and welfare, Judge Troiano issued an order dated January 19,

2011, directing Dr. Brodzinsky to conduct a "best interests"

investigation pertaining to the children and to issue another

report. Three more orders were entered over the next several

months containing detailed directives as to parenting time,

therapy for the older daughter, and payment of the expenses of

the professionals involved.

On June 7, 2011, Dr. Brodzinsky issued his second report,

the seventy-nine-page evaluation previously described. After

providing detailed factual information, Dr. Brodzinsky

thoroughly explained his conclusions, with references to the

factual evidence and support for his conclusions in relevant

research and literature. An important part of his conclusions

for purposes of the current dispute is that the prior efforts to


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reunify the older daughter and the father had failed. As the

observational notes of the visits demonstrate, the daughter's

resistance did not dissipate, and the presence of the two

younger children may have put the father's relationship with

them at risk as well. By seeing the older daughter's conduct

firsthand in the presence of their father, the younger siblings

seemed to be emulating her and joining in her open defiance of

their father, perhaps out of a sense of loyalty to their sister

or mother.

Another significant conclusion reached by Dr. Brodzinsky is

that the deteriorating parental relationships have been caused

by "active parental interference by the favored parent and

parenting deficiencies in the rejected parent, as well as a high

level of case litigation." This conclusion led to Dr.

Brodzinsky's rigorously detailed explanation of his

recommendations for family therapy and a new parenting

arrangement. The general theme of the recommendations, in the

doctor's words, is "a parallel parenting plan rather than a

cooperative one" because of the high level of conflict between

the parties and their inability to set aside their animosity.

In itemized form, Dr. Brodzinsky made thirty-one

recommendations for attempted reunification of the father with

the older daughter, therapy for the daughter and the parents,


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day block of time one week followed by the same two weekdays the

following week. The plan contemplated equal parenting time with

the two younger children, seven days and nights for each parent.

Dr. Brodzinsky recommended the parents be jointly designated as

sharing residential custody of the two younger children under

this arrangement because designating one parent as the parent of

primary residence has been "misunderstood and misused" by the

mother.

By order dated June 20, 2011, the trial court scheduled a

conference to consider Dr. Brodzinsky's recommendations and

ordered counsel to be present with their clients. That

directive changed, however, because of the vacation schedule of

the mother's newly-hired attorney. On the rescheduled

conference date of August 1, 2011, the mother was not in

attendance, possibly because of confusion about the requirement

that she attend. Her attorney attended the conference and was

given ample opportunity to present her views.

The attorney's primary position was that the mother

disagreed with and opposed most of Dr. Brodzinsky's conclusions

and recommendations, and that the court was required to hold an

evidentiary hearing to determine whether and how to implement

any of those recommendations. The father's attorney was willing

to proceed to such a hearing if necessary but requested


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immediate implementation of the recommendations pending an

evidentiary hearing so that attempts at reunification would not

be delayed further. Judge Troiano heard argument and carefully

discussed with the attorneys whether a hearing was required.

In the end, the judge decided to enter an order

implementing almost all of Dr. Brodzinsky's parenting time and

therapeutic recommendations without holding an evidentiary

hearing. The judge reasoned that Dr. Brodzinsky's report was

painstakingly detailed and supported by the evidence recounted

in the report. Protracted examination of the doctor in a

courtroom would not be productive and would only drain the

parties financially and delay the outcome. Furthermore, the

engagement of additional evaluators and experts, as requested by

the mother, would be deleterious to the welfare of the children.

The mother had previously objected to the children being

subjected to repeated examinations and evaluations, and she did

not have a ready proposal to engage yet more experts. The judge

concluded that the time had come to move forward with an order

and not delay the matter further for more evaluations and an

evidentiary hearing. Stating that he had reviewed Dr.

Brodzinsky's report several times, the judge issued the order of

August 1, 2011, adopting Dr. Brodzinsky's recommendations, with

two modifications, for a new parenting time arrangement and


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continuing therapy and monitoring of the family's parenting

difficulties.

While it is true that significant changes in custody and

parenting arrangements will usually require a plenary hearing

where a party opposes the change, Hand v. Hand, 391 N.J. Super.

102, 105 (App. Div. 2007); Entress v. Entress, 376 N.J. Super.

125, 133 (App. Div. 2005); Fusco v. Fusco, 186 N.J. Super. 321,

328-29 (App. Div. 1982), there is no per se rule that an

evidentiary hearing is required for all modifications of

custodial and parenting arrangements. Barblock v. Barblock, 383

N.J. Super. 114, 123 (App. Div.), certif. denied, 187 N.J. 81

(2006). Family Part judges may consider whether genuine issues

of fact exist that require a hearing. Harrington v. Harrington,

281 N.J. Super. 39, 47 (App. Div.), certif. denied, 142 N.J. 455

(1995); Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976).

They may also consider whether the "financial and personal"

costs to the litigants of lengthy hearings may be more

detrimental than helpful to resolving the dispute and to the

best interests of the children. Barblock, supra, 383 N.J.

Super. at 123.

In this case, the modification of the parenting schedule

was not the type of change of custody or atypical parenting

arrangement that we have cautioned may be ordered only after


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hearing conflicting testimony under oath. Entress, 376 N.J.

Super. at 128, 133; P.T., supra, 325 N.J. Super. at 214; Fusco,

supra, 186 N.J. Super. at 327-28. Judge Troiano described the

change from the mother being the parent of primary residence of

the two younger children to joint residential status as "a

label" that did not effect a major alteration of the custodial

status of the children in this case. We agree.

The court is not bound by labels placed on the type of

custodial relationship of the parents and the children.

O'Connor v. O'Connor, 349 N.J. Super. 381, 399-400 (App. Div.

2002). The objective of the court is to protect the best

interests of the children. Kinsella v. Kinsella, 150 N.J. 276,

317 (1997). Because of the Family Part judge's close

familiarity with the parties and with the factual circumstances,

the judge is granted discretion to make modifications of

parenting arrangements with that objective in mind.

Here, the orders appealed from increased the father's time

with the younger children, and they continued attempted

reunification visits with the older daughter, but they did not

essentially alter the custodial arrangement for the children.

Judge Troiano had the authority to make the changes in

accordance with the recommendations of the professionals who had


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studied the parties, the children, and the problems of the

divorce.

As we have stated, we also reject plaintiff's argument that

Judge Troiano abdicated his responsibility to make decisions to

the parenting coordinator and the court-appointed parenting

evaluator. The judge's careful consideration of the numerous

issues and his modification of some of the recommendations in

Dr. Brodzinsky's report is an indication of his personal

decision making. In fact, the judge expressed his intent to

monitor and supervise the conflict closely.

Having reviewed the record and Judge Troiano's reasons for

issuing the orders of December 22, 2010, and August 1, 2011, we

conclude that he did not abuse his discretion in proceeding

without a hearing in the particular circumstances of this case.

See Hand, supra, 391 N.J. Super. at 112.

Finally, plaintiff argues that the judge ordered monetary

sanctions against her without reviewing the financial status of

the parties, but the orders appealed from contain no monetary

sanctions or specific directives pertaining to compensation of

professionals. Additionally, the judgment of divorce contained

substantial terms of equitable distribution, thus providing a

basis to conclude that the parties have assets with which to


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share in the expenses of professionals that have been engaged

during this litigation.

In sum, we conclude that plaintiff has not provided any

ground for us to interfere with the Family Part's fairly

conducted proceedings or diligent efforts to address this

family's many difficulties.

Affirmed.

NJ APPEAL DECISION - HARMING KIDS FOR PROFIT IN FAMILY COURT a6182-10

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