S.M. v. K.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6096-12T3

S.M.,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
December 26, 2013
v. APPELLATE DIVISION

K.M.,

Defendant-Respondent.

________________________________________________________________

Argued December 3, 2013 – Decided December 26, 2013

Before Judges Fisher, Espinosa and Koblitz.

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).

The opinion of the court was delivered by

KOBLITZ, J.A.D.
 We granted plaintiff S.M. (Steve1) 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

1
We use initials and fictitious names to protect the identity of
the children.
2
We note that an administrative directive has the force of law.
State v. Morales, 390 N.J. Super. 470, 472 (App. Div. 2007).

2 A-6096-12T3
"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.

3 A-6096-12T3
 In March 2012, the Division of Youth and Family Services3

(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

3
The Division of Youth and Family Services has been renamed as
the Division of Child Protection and Permanency as part of the
reorganization of the Department of Children and Families
pursuant to L. 2012, c. 16, eff. July 2, 2012.
4
We note that this report was submitted five months before Steve
was indicted, but nearly six months after Steve was served with
a criminal complaint and after a judge determined there to be
probable cause for the charges.

4 A-6096-12T3
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 be contrary to the best

interests of the children.

On November 12, 2012, Steve was indicted for second-degree

endangering the welfare of a child, N.J.S.A. 2C:24-4a, second-

degree possession of a weapon for an unlawful purpose, N.J.S.A.

2C:39-4a, and fourth-degree aggravated assault, N.J.S.A. 2C:12-

1b(4).

5 A-6096-12T3
 On March 14, 2013, Benson released a comprehensive, single-

spaced, twenty-six page "Substance Use Disorder Evaluation" of

Steve. Benson conducted several tests that are recognized in

the field and formed the impression "from all the gathered

information that [Steve] is a consistent blackout drinker to a

degree much greater than he is aware and/or willing to admit."

Among other recommendations, Benson concurred fully with Dr.

Monday's visitation recommendations.

In April 2013, Steve again moved before the Family Part for

therapeutic visitation with his children certifying that he had

not seen them since November 2011. Steve stated that he was

seeking psychological treatment and that he should be permitted

visitation based on the recommendation of the two experts.

Without oral argument, the judge denied Steve any contact

with his children.5 In an attached statement to his June order,

the motion judge gave as his only reason that "the Court is not

convinced that granting Plaintiff's request for supervised

therapeutic visitation would be in the best interest of the

children during the pendency of the criminal proceedings against

plaintiff." We granted leave to appeal "in the interest of

5
The court did not hold oral argument, although requested by
Steve if opposition was filed, because "oral argument would not
have advanced the Court's understanding of these matters . . .
." We note that requests for oral argument should ordinarily be
honored, especially in family motions. R. 5:5-4(a).

6 A-6096-12T3
justice[,]" R. 2:2-4, because depriving children of all contact

with their father is an extreme measure that, if improperly

imposed and maintained for a lengthy period of time, could cause

severe injury to the children. See V.C. v. M.J.B., 163 N.J.

200, 229, (explaining that permanent denial of visitation is

such an "extraordinary proscription that it should be invoked

only in those exceptional cases where it clearly and

convincingly appears that the granting of visitation will cause

physical or emotional harm to the children or where it is

demonstrated that the parent is unfit[]"), cert. denied, 531

U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000); see also,

N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235,

264 (App. Div. 2005) (noting that experts are increasingly

concerned about the harm to the child caused by the loss of a

parent and are "recognizing the need for continued contact with

a biological parent, even a flawed parent. . . ."). In the

context of this case, where the Division could well have filed a

complaint for abuse and neglect if Kim were not deemed a safe

custodial parent, it is instructive to look at the law

controlling child protective services cases.

Not only do parents have a constitutional right to enjoy a

relationship with their children, In Re Guardianship of K.H.O.,

161 N.J. 337, 346 (1999), children likewise have the right to

7 A-6096-12T3
visit with their parents after they have been removed from the

parent's home. N.J.S.A. 9:6B-4A(e). This is so even if the

children verbalize a desire not to see the parent, as happened

here.6 The Children's Bill of Rights states that a child has the

right "to visit with [his or her] parents or legal guardians . .

." or to "otherwise maintain contact with [his or her] parents

or legal guardian. . . ." Ibid. A child's best interests are

generally fostered when both parents are involved with the

child, assuring the child of frequent and continuing contact

with both parties. Finamore v. Aronson, 382 N.J. Super. 514,

523 (App. Div. 2006).

Rule 5:12-6 states that "when a criminal complaint has been

filed against a parent or guardian arising out of the same

incident as the [Division] action . . . the Family Part shall

determine the nature and scope of parental or guardian

visitation, if any . . . ." The Rule further explains that upon

"scheduling any hearing at which visitation conditions are to be

imposed or modified, the court shall provide notice to the

county prosecutor . . . ." R. 5:12-6(a)(1). The Rules of Court

also provide that if a criminal court imposes a no contact order

6
In determining custody, for example, the "preference of the
child when of sufficient age and capacity to reason so as to
form an intelligent decision" is only one factor a court must
consider. N.J.S.A. 9:2-4(c).

8 A-6096-12T3
as a condition of bail, as here, "such restrictions shall not

affect contact authorized by an order of the Family Part in a

child abuse/neglect case entered after any restrictions on

contact was imposed as part of a bail order." R. 3:26-1(b).

Here, the criminal judge specifically deferred to the family

judge as required by the Rule.

The Administrative Office of the Courts promulgated

procedures for "co-occurring child abuse and domestic violence"

cases in which an abuse and neglect case is filed concurrently

with a complaint alleging domestic violence against the child.

Directive at 2-9. The aim of the Directive was to "coordinate

the interface of policies . . . to ensure effective handling of

cases of co-occurrence[]" when there is pending both a child

protective services action and a criminal complaint against a

parent. Directive at 2.

The purpose of the directive is to provide "operational

guidance" to judges and staff in achieving the statutory mandate

of N.J.S.A. 2C:25-18, which is intended to protect "victims of

violence that occurs in a family or family like setting by

providing access to both emergent and long-term civil and

criminal remedies . . . ."

The Directive points out the provision of Rule 5:12-6

requiring the inclusion of the prosecutor and criminal defense

9 A-6096-12T3
attorney in the hearing before the family judge to determine

whether and what type of visitation to accord the accused

parent. While the State submitted a letter to the criminal

judge "strenuously" opposing any modification in bail conditions

to allow Steve to see his children, in that letter the

prosecutor simply reiterates the charges against plaintiff and

their potential sentences. We do not know whether this letter

was actually seen by the family judge.

Neither party requested a plenary hearing before the family

judge nor on appeal. Thus, we leave to the sound discretion of

the family judge whether such a hearing is necessary to decide

this temporary visitation dispute or whether oral argument and

consideration of documentary evidence is sufficient. See, Wilke

v. Culp, 196 N.J. Super. 487, 502-03 (App. Div. 1984) (noting in

a non-temporary visitation dispute that the Family Part

ordinarily conducts a plenary hearing when the facts are

contested), certif. denied, 99 N.J. 243 (1985).

We therefore remand this matter to the Family Part judge to

determine whether supervised therapeutic visitation with Steve

is in the best interests of the children. We direct the judge

to follow the procedures set forth in Rule 5:12-6 and the

Directive.

Reversed and remanded.

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