ALYSSA FERSTENFELD v. MITCHELL FERSTENFELD (2011)

Plaintiff mother and defendant father are the divorced parents of a seven-year-old boy.   Plaintiff appeals from a post-judgment order granting defendant unsupervised parenting time and denying her request for sole custody.   She contends that the judge failed to address her applications for enhanced supervision and sole custody and erred by granting defendant's motion for unsupervised parenting time without a plenary hearing.   We reverse because the judge's decision was based on a mistaken assumption about the basis for the order she modified.

In 1988, when defendant was seventeen years old, he sustained a severe brain injury in a car accident.   Despite the severity of his injury, with therapy and rehabilitation he was able to graduate from high school and college.   Since 2000, he has been steadily employed by a payroll services company.

The parties married in 2001, and their son was born in February 2004.   In 2005, defendant was experiencing low-level seizures following a change in his medication, and he underwent a neuropsychological evaluation at Mt. Sinai School of Medicine.   His cognitive abilities in thirty-one categories were assessed, and his rankings were as follows:  four, superior to high average;  eighteen, average;  four, low average;  and five, borderline to impaired.   The abilities ranked lowest were overall processing speed;  inhibiting automatic response;  gross motor skills, hands;  fine motor skills, hands;  and rapid switching from one idea to another.   His diagnoses were cognitive disorder and obsessive compulsive disorder.   Medication adjustment, “psychoeducation” to maximize cognitive and emotional functioning and couples' therapy were recommended.   Additionally, the doctors suggested defendant have “a repeat neuropsychological evaluation within the next several years,” to monitor “stability or change in his overall cognitive functioning.”

Plaintiff filed the divorce complaint in 2006, and the parties reached an agreement that was incorporated in an amended and a second amended final judgment of divorce entered in 2008.   Pertinent here, they agreed to joint legal custody with plaintiff having primary residential custody.   Defendant was to have parenting time every Sunday from 10:00 a.m. through 4:00 p.m., supervised by his parents until the parties agreed on another supervisor.   Because the parties' son had exhibited some behaviors characteristic of children with autism, the agreement provided for a two-hour extension of defendant's parenting time on the condition that he and his parents complete a workshop at the Center for Outreach Services to the Autism Community (COSAC).   The agreement also entitled defendant to parenting time during his son's music class on Wednesday evenings.

The final iteration of the parties' agreement contemplates unsupervised parenting time if defendant's health and interaction with the child permit.   To address these dual concerns, defendant's neurologist would report on any seizures defendant might have between March 10, 2008 and March 10, 2009, and Judy Leggett, a masters-level certified social worker, would supervise defendant's parenting from August 10, 2008 until March 10, 2009 and report on the father-son interactions.   The parties agreed:

If [defendant] is seizure free and if Judy Leggett's report is positive, [defendant] shall be given unsupervised visitation parenting time.  [Plaintiff] will have to file an application if she wants supervised parenting to continue.   If the report is negative or [defendant] suffers from seizure(s), then supervised parenting time shall continue until such time as a hearing can be conducted.

Defendant also agreed not to drive with the child in the car.

After March 10, 2009, defendant moved for unsupervised parenting time.   By that time, defendant, his parents and his girlfriend had all successfully completed the workshop offered by COSAC.   Defendant's neurologist advised that defendant had not had a seizure since December 2007, and his seizure condition was “very well controlled with current medication.”   A certified abstract of defendant's driving record showed that his “medical interval reporting-license” was in “good standing,” despite car accidents in October 2005 and November 2006, and a speeding ticket in March 2006.

Leggett testified at the motion hearing and reported the following.   Defendant had friends and family members who cared about him and the child.   Generally, one or more of those adults were present when defendant visited his son in her presence.   Defendant and the child played together, and, in Leggett's opinion, the child loved him and enjoyed the visits.   Defendant, however, took more time than normal to do things for the child — like helping him with his shoes and securing him in a car seat.   When the boy needed something, he looked to his grandparents rather than defendant, and the child has asked Leggett who would be with him and his dad when she was no longer supervising their visits.

Leggett concluded that defendant did not need “in-line-of- sight” supervision.   Nonetheless, in her opinion defendant needed another adult with him during his parenting time to assist if needed, at least until the child was old enough to take care of himself.   Leggett indicated that her opinion would not be different if defendant were not at risk of seizure.

The judge denied plaintiff's request for access to defendant's medical records and an independent evaluation of his condition, and she declined to interview the five-year-old child.   On the evidence set forth above, the judge found that although defendant's seizures were under control, he needed the assistance of another adult during his parenting time but not “in-line-of-sight” supervision by a professional.   Accordingly, the judge ordered visitation supervised by one of several designated relatives and friends until August 2009.   After that, the order would remain in effect until modified by the court on motion of either party.

In February 2010, defendant moved to eliminate all restrictions on his parenting time.   Plaintiff opposed his application and filed a cross-motion seeking sole custody and supervised parenting time in the presence of a professional.

When the motion was heard, the parties' son was six years old and had developed ulcerative colitis.   Although his pediatrician diagnosed Autism, specialists' reports issued by doctors who evaluated the child's condition and progress were generally positive.   The child was described as bright, sociable and friendly, despite “indications of sensory integration dysfunction,” “mild speech articulation impairment” and “mild grammatical errors.”   His overall “adaptive behavior composite” was “adequate,” with “low” or “moderately low” ratings in expressive communication, personal daily living skills, play and leisure time and gross motor skills.   With the exception of oral expression, his competence was at or above the level for his age equivalent, and his grades on a standardized behavioral survey were all in the average range.   No “indications of a disorder on the PDD/Asperger spectrum” were found, but he was diagnosed with a “mild, static neurological impairment, manifesting hypotonia,” and mild fine and gross “motor incoordination.”   The recommendations were language and occupational therapy and adaptive physical education to improve muscle tone, motor coordination and weight.

A pediatric neurologist treating the child reported he had “really shown improvement,” but he cautioned that when “left without competent adult supervision,” the child would “lapse into some self-stimulatory behaviors.”   In his opinion, the child needed competent supervision “to live up to his potential.”

Plaintiff's theory of the case was that defendant's traumatic brain injury and obsessive compulsive disorder left him ill-equipped to recognize and cooperate to meet their child's special needs.   She submitted a report from a clinical psychologist who had reviewed defendant's medical and driving records, including the 2005 Mt. Sinai evaluation discussed above and Leggett's report.   Plaintiff's expert described the residual effects of brain injuries like defendant's and their poor prognosis, which includes deterioration over time.   He recommended visitation supervised by a professional and continuation of the ban on defendant's driving with their child pending a series of evaluations:  a comprehensive neuropsychological evaluation focusing on his executive functioning, decision-making capacity, emotional status and obsessive compulsive disorder;  an assessment of defendant's capacity for parenting by a qualified professional familiar with the demands placed on a parent of an autistic child;  and a formal evaluation of defendant's capacity to drive.

Defendant asserted that he was seizure-free and able to care for the child during his parenting time without supervision.   Defendant's neurologist reported that defendant had not had a seizure since his last report, and as of September 2009, his driving privilege was not subject to medical reporting.   On a weekly basis from May 2008 through April 2010, defendant was treated by a licensed clinical psychologist who specialized in clinical neuropsychology.   That psychologist submitted a letter acknowledging the generally dim, long-term prospects for persons with brain injuries like defendant's but reporting, without any elaboration, that defendant's condition was “quite different than expectations.”

In addition to the various evaluations of defendant and the child, the parties submitted certifications and emails relevant to their disagreements about the child's needs.   Defendant contended that plaintiff overstated the child's needs, and the emails reflect his opposition to contributing to the cost of certain therapeutic programs plaintiff arranged and to her taking their child to doctors not covered by his medical insurance.   Plaintiff complained about defendant's interactions with her and her mother in the presence of the child, and she questioned his capacity to drive, reporting that she had been told that he hit a car in a parking lot.   She also reported that defendant violated his obligation to have an adult present during visitation, took the child to the movies rather than administering a necessary nebulizer treatment and allowed the child to eat food that he should have known would irritate his colitis.

The judge denied all requests for discovery and evaluations and decided the competing motions for modification on the forgoing evidence.   Starting on the erroneous premise that the present order governing supervised parenting was based solely on defendant's risk of seizure and his driving status, the judge found that defendant had remained seizure-free and had been cleared to drive without restriction.   On that basis, the judge concluded that continuation of supervised parenting time during defendant's Wednesday evening visits and his eight-hour parenting time on Sundays, as well as the restrictions on his driving with the child, were no longer warranted.

Accordingly, the judge terminated supervision of defendant's Wednesday evening parenting time effective immediately.   She directed a gradual, incremental transition to unsupervised parenting time during defendant's eight-hour Sunday visits over a one-year period — four hours of unsupervised visitation during the first six months, six hours during the next six months and eight hours thereafter.

The judge did not address plaintiff's request for sole legal custody.   She made findings relevant to the child's needs and required defendant to cooperate with plaintiff's efforts to address them.   The order obligates defendant to keep records of what he feeds the child and to contribute to the cost of the child's prescribed therapy and the expense of treatment given by designated doctors not covered by the child's medical insurance.   The judge addressed problematic interactions at the beginning and end of defendant's parenting time by directing “curbside pick-up” and prohibiting harassing communications.

Plaintiff raises two arguments on appeal:

I.  THE TRIAL COURT FAILED TO EXPLAIN WHY

IT DENIED [PLAINTIFF'S] CROSS–MOTION WITH REGARD TO LEGAL CUSTODY & SUPERVISED PARENTING TIME.

II. THE TRIAL COURT ERRED BY NOT HOLDING A

PLENARY HEARING TO RESOLVE THE FACTUAL DISPUTES IN THIS MATTER.

“Judges of the Family Part are regularly called upon to make exceedingly difficult and delicate decisions as to the best interest of children, and we are obliged to give deference to both their findings and the exercise of their sound discretion.”  Abouzahr v. Matera–Abouzahr, 361 N.J.Super. 135, 157 (App.Div.), certif. denied, 178 N.J. 34 (2003).   Judicial discretion must, however, be exercised in accordance with the law.

Custodial arrangements and parenting time may be modified on a showing of a change in circumstances sufficient to warrant an adjustment in the best interest of the child, and the burden of proof is on the party seeking modification.  Sheehan v. Sheehan, 51 N.J.Super. 276, 287 (App.Div.), certif. denied, 28 N.J. 147 (1958);  see Grover v. Terlaje, 379 N.J.Super. 400, 410 (App.Div.2005) (discussing incremental changes in orders governing legal custody).   A judge must consider a request for modification in accordance with the procedural framework established by the Supreme Court in Lepis v. Lepis, 83 N.J. 139, 157–59 (1980).   Under Lepis, the first question is whether the party seeking modification has made a prima facie showing of a relevant change in circumstances.  Id. at 157–59.   If prima facie showing is made, then Lepis requires the judge to consider whether discovery is needed and define its scope.  Ibid.;

R. 4:10–2;  R. 5:8–1 to:8–6.   Following discovery, if there is a genuine dispute of fact, then a plenary hearing must be held.  Id. at 159.

To determine whether there is a prima facie showing of changed circumstances, a judge must consider the terms of the order he or she is asked to modify and compare the facts as they were when that order was entered with the facts as they are at the time of the motion.  Sheehan, supra, 51 N.J.Super. at 287–88.   This is where the judge went wrong.   She analyzed the evidence submitted on these competing motions from a mistaken premise — that supervised visitation was ordered solely because of defendant's risk of seizures.   But defendant's seizure condition was not the primary basis for the judge's order requiring supervised visitation.   As noted above, the judge ordered supervised visitation until August 2009 out of concern that defendant needed assistance to care for the child.

The judge's mistake, understandable as it is given the repeated interruptions of her decision, caused her to err.   She did not consider whether either party made a prima facie showing of change in defendant's capacity to care for the child or the child's capacity to care for himself that warranted either relaxation or enhancement of supervision or sole rather than joint legal custody.   Accordingly, we must remand to permit the judge to consider the competing motions anew in accordance with the procedures set forth in Lepis and judicial decisions addressing modification of parenting time and legal custody.   In consideration of the time that has passed since entry of the present order, we leave it in place until modified by the judge.

To provide guidance for the benefit of the parties and the judge, we reiterate.   To prevail, defendant must first establish a prima facie case of a change in his capacity to parent without assistance.   Conversely, to obtain an order requiring more intense supervision or sole legal custody, plaintiff must show a change in circumstances warranting more than the assistance of a friend or family member and assignment of responsibility for major decisions about the child to her alone.   If the judge concludes that either party or both have established a prima facie case, then the judge must address the scope of discovery, including whether evaluations of parental capacity or consideration of the child's views is appropriate.¹  R. 4:10–2;  R. 5:8–1 to:8–6.   If there is a genuine dispute of fact after discovery, then a plenary hearing must be held.  Lepis, supra, 83 N.J. at 159.

Reversed and remanded.   The order in place shall remain in effect until modified by the judge, and we do not retain jurisdiction.

FOOTNOTES

FN1. As noted above, plaintiff provided two reports, one from doctors who evaluated defendant's condition in 2005 and one from an expert who reviewed the 2005 assessment and other medical records.   Both recommend reassessment of defendant's condition due to the risk of deterioration with time.   The judge should consider those reports in addressing plaintiff's request for an independent medical examination and other assessments.   To the extent the judge disregarded plaintiff's expert's opinion as a net opinion, she erred.   The expert's opinion is explained with reference to defendant's medical records and the expert's education, training and experience.   See N.J.R.E. 703;  State v. Townsend, 186 N.J. 493, 494–95 (2006)..  FN1. As noted above, plaintiff provided two reports, one from doctors who evaluated defendant's condition in 2005 and one from an expert who reviewed the 2005 assessment and other medical records.   Both recommend reassessment of defendant's condition due to the risk of deterioration with time.   The judge should consider those reports in addressing plaintiff's request for an independent medical examination and other assessments.   To the extent the judge disregarded plaintiff's expert's opinion as a net opinion, she erred.   The expert's opinion is explained with reference to defendant's medical records and the expert's education, training and experience.   See N.J.R.E. 703;  State v. Townsend, 186 N.J. 493, 494–95 (2006).

PER CURIAM