Opinion
DOCKET NO. A-2952-12T1 DOCKET NO. A-1623-13T3
11-10-2014
KATHLEEN LANE, Plaintiff-Respondent/Cross-Appellant, v. ANDREW F. LANE, JR., Defendant-Appellant/Cross-Respondent. KATHLEEN LANE, Plaintiff-Respondent, v. ANDREW F. LANE, JR., Defendant-Appellant.
Eric S. Solotoff argued the cause for appellant/cross-respondent in A-2952-12 and appellant in A-1623-13 (Fox Rothschild, LLP, attorneys; Mr. Solotoff, of counsel and on the briefs in A-2952-12 and A-1623-13; Robert A. Epstein, on the brief in A-1623-13). Brian P. McCann argued the cause for respondent/cross-appellant in A-2952-12 and respondent in A-1623-13 (Cavalli & McCann, LLC, attorneys; Mr. McCann, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Grall, Nugent and Accurso. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2135-04. Eric S. Solotoff argued the cause for appellant/cross-respondent in A-2952-12 and appellant in A-1623-13 (Fox Rothschild, LLP, attorneys; Mr. Solotoff, of counsel and on the briefs in A-2952-12 and A-1623-13; Robert A. Epstein, on the brief in A-1623-13). Brian P. McCann argued the cause for respondent/cross-appellant in A-2952-12 and respondent in A-1623-13 (Cavalli & McCann, LLC, attorneys; Mr. McCann, on the briefs). The opinion of the court was delivered by GRALL, P.J.A.D.
Plaintiff Kathleen Lane and defendant Andrew F. Lane were married in June 1993 and have three children, two daughters and a son. They divorced in October 2004, and their dual final judgment incorporates a comprehensive marital settlement agreement (MSA). At the time of the divorce, the children were age nine, seven and four.
The MSA provides for the parents to have joint legal custody and to share physical custody of the children on an equal basis, an arrangement their MSA describes as advancing "the children's best interests." The parties agreed to a straightforward system for sharing non-holiday and vacation weeks, by alternating weekend overnights — Friday, Saturday and Sunday — and dividing the four intervening overnights with every Monday and Tuesday going to defendant and every Wednesday and Thursday going to plaintiff.
Acknowledging their need to communicate, adjust the schedule and accommodate one another in their children's best interests, they both agreed to: attend counseling for a reasonable time following the divorce "relative to communication and participation in parenting matters"; cooperate in helping the children adjust; modify the schedule by mutual consent as needed; seek assistance from a counselor or mediate before relief in court; and not "alienate" the children from, or "color the children's attitude" toward, the other.
In 2007, defendant sought and obtained an order terminating his $80,000 annual alimony based on plaintiff's cohabitation. By cross-motion, plaintiff sought and was denied an increase in defendant's $30,000 annual child support obligation. Within months, plaintiff remarried and defendant lost his job. Plaintiff, her new husband and his and her children moved farther from defendant's home than plaintiff had lived immediately after the divorce.
By early 2008, difficulties with the shared-physical custody arose. Since then, whether attributable to plaintiff's and her husband's reactions to the 2007 litigation, as defendant argues, or attributable to defendant's parenting style and insistence upon strict enforcement of the parties' custody arrangement, as plaintiff argues, to varying degrees and at different times, one or more of the parties' daughters has resisted spending parenting time with defendant. On occasion, the children have left defendant's home and walked alone to plaintiff's former home nearby, which was unoccupied. On other occasions, plaintiff or a surrogate facilitated the resistance by retrieving the children, or arranging for them to be retrieved, prior to or in the midst of defendant's parenting time.
Defendant commenced the litigation in late April 2008, after the parties attempted but failed to resolve the problem with the assistance of a clinical psychologist, Dr. Linda Taylor, whom defendant selected from a list plaintiff secured from the children's school. That motion was resolved by an order of June 4, 2008, in which the judge, with the parties' consent, appointed Dr. Sharon Ryan Montgomery "to conduct a best interest evaluation" and, with defendant's consent, suspended his overnight parenting time until she completed the evaluation.
The parties' children are now nineteen, seventeen and fourteen. Despite their promises of communication and cooperation, to date the parents have been unable to resolve their disagreements about their shared-physical custody arrangement. Instead, the parties have repeatedly filed post- judgment motions alleging violations of their MSA custody agreement and related post-judgment orders.
Prior to oral argument, we granted the nineteen-year-old child's motion for a limited remand to address a motion she filed after her eighteenth birthday to protect her rights as an adult.
Defendant has sought sanctions against plaintiff and her husband ranging from reimbursement for reasonable attorney's fees and make-up parenting time to steep fines and a temporary transfer of custody to him, and he has been awarded some make-up parenting time. Plaintiff, denying interference and contending that she is doing everything she can to encourage a child resisting parenting time with defendant to attend, has opposed defendant's enforcement motions and sought alternative relief in the form of therapeutic parenting time.
Several judges of the Family Part have addressed those post-judgment motions. In addition, different panels of this court have addressed three prior appeals from the post-judgment orders concerning custody in two opinions. Lane v. Lane (Lane I), Nos. A-5645-09 and A-3401-10 (App. Div. Apr. 16, 2012), certif. denied, 212 N.J. 199 (2012); Lane v. Lane (Lane (II), No. A-1582-11 (App. Div. Apr. 8, 2013).
Because we have no reason to distinguish among the judges involved, we do not.
The orders before the panel in Lane I were 1) a June 14, 2010 order denying defendant's request for six months' sole custody in connection with participation in a special program for alienated children and, instead, requiring counseling with a second therapist, Dr. Morton Fridman; and 2) a February 1, 2011 order enforcing the June order by requiring defendant to participate in counseling with a third therapist, Dr. Jeffrey J. Wilson, which defendant resisted on the ground that the therapist would not agree to refrain from communication with the parenting coordinator or judge.
The order before the panel in Lane II was entered on October 18, 2011. It denied defendant's motion to replace the parties' second parenting coordinator. That appeal was mooted by a provision of the order of October 23, 2012, which denied plaintiff's request to require defendant to participate with that parenting coordinator and authorized the parties to use a parenting coordinator by mutual agreement.
Pursuant to orders entered on the post-judgment motions, the parties and their children have worked with three family therapists — Dr. Taylor, Dr. Fridman and Dr. Wilson, and two parenting coordinators — Ms. Mary Ann Stokes and a retired judge. The family members and others have been evaluated by Dr. Montgomery twice. And, the family, along with plaintiff's husband and his children and with defendant's girlfriend, has participated in an intensive program for families with one or more children who appear to be alienated from or aligned with one parent. In addition, defendant has obtained an expert report of his own from Dr. Amy J.L. Baker, an expert in parental alienation.
From time to time, circumstances have improved. In fact, the parties' third child, their only son, has generally shared his time equally with his parents and there is no evidence that he expressed dissatisfaction with that arrangement on more than one occasion. In contrast, the parties' first child, who is now nineteen, has spent little to no time with her father since she reached the age of sixteen. Their second child's participation has varied over the years.
With this opinion, we consolidate and address defendant's two appeals and plaintiff's single cross-appeal from orders entered on post-judgment applications that the parties filed in 2012 and 2013. Lane v. Lane (Lane III), No. A-2952-12 (App. Div. Nov. 10, 2014), involves orders the judge issued on October 23, November 14 and 15, 2012 and February 6, 2013. All of them concern enforcement of the shared-parenting agreement. Lane v. Lane (Lane IV), No. A-1623-13 (App. Div. Nov. 10, 2014), addresses two orders entered on October 25, 2013.
I
With the exception of one of the October 25, 2013 orders, which addresses tuition for private high school, the orders at issue on this appeal concern enforcement of the parties' shared-physical custody arrangement. The standards that govern our review of such matters and the Family Part's discretionary enforcement actions in the first instance are well-settled. Because that law provides a framework for our discussion of the orders and the parties' respective objections to them, we begin there.
A
Our review of the Family Part's rulings on enforcement motions is deferential. We accept a judge's determination that a party has violated an order concerning parenting if it is adequately supported by the record as a whole, and we do not disturb a judge's exercise of discretion in selecting a remedy for a violation so long as there is a rational explanation consistent with the law and the evidence. Milne v. Goldenberg, 428 N.J. Super. 184, 197-99 (App. Div. 2012); see, e.g., P.T. v. M.S., 325 N.J. Super. 193, 219-20 (App. Div. 1999) (reversing an order imposing sanctions for a mother's violation of an order concerning restoration of a father's parenting time where the judge's findings were not supported by the evidence and the sanction was punitive rather than coercive and not beneficial to the child).
B
The standards governing enforcement of custody and parenting time orders are also clear. Upon "finding that a party has violated an order respecting custody or parenting time," a judge of the Family Part has discretion to order a remedy authorized by Rule 1:10-3 and any of the remedies set forth in paragraph (a) of Rule 5:3-7; see, e.g., Milne, supra 428 N.J. Super. at 198 (applying an abuse of discretion standard in reviewing a remedy imposed to enforce an order). Imposition of a sanction for a violation requires a showing that non-compliance was inexcusable, which means that the party had the ability to comply but did not. Ibid.; see Pasqua v. Council, 186 N.J. 127, 141 (2006) (noting that coercive incarceration is permissible only where the violation is willful).
The remedies available for violations of standing orders are intended to achieve compliance, not to condemn or punish the offending parent. That is consistent with the principle that on every motion involving custody or parenting time, the best interests of the child is the primary consideration. V.C. v. M.J.B., 163 N.J. 200, 227-28 (2000); Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). That best interests' standard focuses on the "safety, happiness, physical, mental and moral welfare of the child." Fantony v. Fantony, 21 N.J. 525, 536 (1956); see N.J.S.A. 9:2-4(c) (setting forth a non-exhaustive list of relevant factors).
The remedies set forth in Rule 5:3-7(a), which may be awarded "singly or in combination," are
(1) compensatory time with the children; (2) economic sanctions, including but not limited to the award of monetary compensation for the costs resulting from a parent's failure to appear for scheduled parenting time or visitation such as child
care expenses incurred by the other parent; (3) modification of transportation arrangements; (4) pick-up and return of the children in a public place; (5) counseling for the children or parents or any of them at the expense of the parent in violation of the order; (6) temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children; (7) participation by the parent in violation of the order in an approved community service program; (8) incarceration, with or without work release; (9) issuance of a warrant to be executed upon the further violation of the judgment or order; and (10) any other appropriate equitable remedy.
Importantly, the sixth optional remedy does not permit a "temporary or permanent modification of the custodial arrangement" unless it "is in the best interest of the children." As the Supreme Court explained in Beck v. Beck, 86 N.J. 480, 499 (1999),
Traditional enforcement techniques are singularly inappropriate in a child custody proceeding for which the best interests of the child is our polestar. Despite the obvious unfairness of allowing an uncooperative parent to flout a court decree, we are unwilling to sanction punishment of a recalcitrant parent if the welfare of the child will also suffer. However, when the actions of such a parent deprive the child of the kind of relationship with the other parent that is deemed to be in the child's best interests, removing the child from the custody of the uncooperative parent may well be appropriate as a remedy of last resort.
Generally where a custodial arrangement is in place, modification is appropriate only upon a showing that circumstances affecting the child's welfare have changed. Beck, supra, 86 N.J. at 496 n.8; Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958). Where that is the case, a new custody determination in the best interest of the child is established.
Beck makes it clear that the same consideration — the children's best interest — pertains when a change of custody is selected as a remedy for a violation of a parenting arrangement. Removal of a child from the custody of an uncooperative parent is an appropriate "last resort" for enforcing shared-physical custody only when shared parenting is "deemed to be in the child's best interests." 86 N.J. at 499. Thus, the sixth optional remedy is not a fast-track, an alternative route so to speak, for modification of a shared-custody arrangement as a sanction without a determination that the change is in the children's best interests.
To some extent, defendant's repeated motions seeking a change in custody as a remedy for violations indicate his misunderstanding of that point. The panel in Lane I made that point when it observed, "When seeking to modify custody, as the father did here by requesting sole custody for six months," the party "'must demonstrate changed circumstances that affect the welfare of the children.' Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007)." Lane I, supra, slip op. at 7.
In fact, the need for repeated post-judgment motions seeking enforcement of a shared-physical custody arrangement, necessarily and naturally raise the question whether the family is in the "limited class" of families where joint legal and joint physical custody is "acceptable." Beck, supra, 86 N.J. at 488; see Nufrio v. Nufrio, 341 N.J. Super. 548, 555 (App. Div. 2001) (affirming a denial of joint legal custody where the judge determined that one parent would likely file repeated and harassing motions that would be detrimental to the best interests of the child). After all, a judge may not order a joint custodial (equally shared-physical custody) arrangement unless, among other things, the parents both "exhibit a potential for cooperation in matters of child rearing," which requires that both parents have an ability "to isolate their personal conflicts from the roles as parents" so that "the children can be spared whatever resentments and rancor the parents may harbor." Beck, supra, 86 N.J. at 497-99; N.J.S.A. 9:2-4(c). The repeated post-judgment applications in this case suggest that the parents cannot do that.
The several judges of the Family Part involved in the post-judgment motions in this case have primarily attempted to serve the best interests of the parties' children by providing enforcement remedies giving the family an opportunity to resolve the dispute with professional assistance, as their MSA provides. That approach is consistent with the principle that "parents working together" are in the best position to make a valid decision about what is best for their children, Tahan v. Duguette, 259 N.J. Super. 328, 336 (App. Div. 1992), and this court has approved orders requiring one or more family members to participate in counseling needed to communicate and cooperate in matters involving the children. See, e.g., Nufrio, supra, 341 N.J. Super. at 555 (approving an order requiring counseling that could, in the future, "lead to a basis for appropriate communication and cooperation between the parties" required for joint legal custody).
The wide variety of remedies for a parent's recalcitrance enumerated in Rule 5:3-7(a) demonstrate that judges have wide discretion in addressing violations. They are not required to grant make-up parenting time, a change in custody, or financial sanctions just because the aggrieved parent requests it. The children's best interests is the polestar.
C
With those legal standards as a framework, we turn to the orders that are before us on these consolidated appeals.
II
The first orders at issue on this appeal were entered on October 23, 2012. They concern defendant's allegations that plaintiff and her husband interfered with his parenting time over the holiday season from Christmas Eve 2011 through New Year's Day 2012.
Prior to the holiday parenting time, defendant moved to enforce his parenting time in advance. Defendant had reason for concern about non-compliance. Despite an August 8, 2011 order requiring the parties to comply with existing orders and return to court in September 2011 to address any non-compliance, the first child spent less than one day of defendant's vacation time with him. On October 18, 2011, the judge denied sanctions defendant requested and instead reappointed Dr. Montgomery to update her 2009 best interests' evaluation. Responding to defendant's complaint about the lack of enforcement, the judge explained that the "real issue" was what action should be taken to address the children's resistance to defendant's parenting time.
On December 23, 2011, the judge denied defendant's request to "effectuate" their first child's "total attendance and adherence" to his parenting time over the Christmas holiday. In a written decision, the judge explained:
The Appellate Division denied defendant's emergent motion to appeal from the December 23, 2011, order.
This Court, given the existing order for parenting time finds the Plaintiff's obligations are clear. The Plaintiff may not interfere with the Defendant's parenting time and, in fact, the Plaintiff has an affirmative obligation to encourage [the first child] to have parenting time with the Defendant as ordered.
The Defendant seeks to have the Court anticipate that the Plaintiff will not meet her obligations and to proscribe sanctions.
The Court is aware that the Defendant believes the Plaintiff is alienating [the first child] from the Defendant. . . .
The Court anticipates that[,] depending on Dr. Montgomery's evaluation[,] remedial action may be required if parental alienation is present. In the event parental alienation is not present then therapeutic parenting time may be appropriate given [that the child] is 16 years of age.
Sanctions should be employed very carefully given [the child's] age. Certainly, to anticipate and signal specific sanctions for an event which may not take place is problematic
. . . .
The first child did not follow the Christmas through New Year's Eve schedule. Defendant moved for enforcement, and plaintiff opposed. The judge entered an order on February 15, 2012: 1) scheduling a plenary hearing on defendant's allegations of plaintiff's interference in his parenting time and, if so, the sanction that should be imposed; 2) once again restraining plaintiff from interfering with defendant's parenting time going forward; 3) prohibiting plaintiff and her husband from being within a half mile of defendant's home during his parenting time; 4) warning that failure to comply with the restraints "shall result in sanctions, up to and including a transfer of custody"; 5) denying, without prejudice, the remainder of the relief sought by defendant, including a $10,000 fine and 100 hours of community service for plaintiff's husband and a $1500 fine and 60 hours of community service for plaintiff; and 6) restraining defendant from harassing plaintiff and her husband.
The plenary hearing was held on separate days in July and September 2012. To date, that plenary hearing is the only testimonial hearing conducted since defendant commenced this post-judgment litigation concerning shared custody in April 2008.
The judge heard testimony from plaintiff, defendant and defendant's girlfriend, who was present on Christmas Day and has a relationship with his children. Defendant objected to the judge interviewing the children, and the judge did not speak to them. Neither party presented expert testimony, but defendant moved into evidence a report from Dr. Baker, his expert, and Dr. Montgomery's June 2009 report. Dr. Montgomery submitted her July 8, 2012 updated evaluation report to the judge, and the judge provided counsel with a copy under protective order on July 16, which was the fourth day of the hearing.
At the hearing, the judge recognized that the expert reports were hearsay, admissible subject to cross-examination pursuant to Rule 5:3-3(g). He indicated that the reports would be admitted into evidence as part of the court's record but not considered for the truth.
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The schedule for the 2011-2012 holiday was undisputed. Defendant was scheduled to have the children from 10:00 p.m. on December 24, 2011, to 12:00 p.m. on January 1, 2012. While the parties disputed the precise time of the first child's departure and disagreed about who drove the child to and from the parenting time on Christmas Day, there is no dispute that the child spent a few hours with defendant that day and no additional time with him between Christmas and New Year's Day. There is also no dispute that plaintiff took the child to a dinner party on Christmas Day and to get a driver's permit in the days between Christmas and New Year's Day.
By plaintiff's account, she made a significant effort to convince their sixteen-year old to go to defendant's home on Christmas Eve, noting that she had reminded the child that defendant had bought a puppy and planned a big holiday and that plaintiff had celebrated Christmas with her children early to avoid interference with defendant's time. Plaintiff admitted that she did not begin discussing Christmas with the first child until mid-December, because the child was studying for exams, and she acknowledged that she had never offered the child incentives for her compliance, or disincentives for her non-compliance, with defendant's parenting time.
Plaintiff described the first child as "very strong-headed" and a "homebody." By plaintiff's account, the child simply refused to stay overnight with defendant on Christmas Eve and agreed to go to his home for a few hours on Christmas Day only on the condition that she be permitted to leave when she wanted.
According to plaintiff, she succeeded in encouraging the child to see defendant on New Year's Eve but only on the condition that the child could leave when she wanted. Although defendant agreed to that condition, the child withdrew her consent when defendant refused to be the one to return her when she wanted to leave, as plaintiff had asked. At that point, there was no order restraining plaintiff from being within a specified distance of his home but there was an order prohibiting her from removing the children during defendant's parenting time.
During their testimony, defendant and his girlfriend gave a materially similar account about the duration and frequency of the child's time with them on Christmas Day and New Year's Eve. On those matters, the discrepancies were minor differences about precise arrival and departure times and how the child got to and from defendant's home.
Importantly, defendant did not dispute that he had told the child "she could always leave" when she no longer wanted to participate in his parenting time. According to him, since August 2011, plaintiff or the nanny had been picking the child up when she wanted to leave and that nothing had changed. Additionally, when defendant's attorney asked him about compromises he had made over the years, defendant said he wanted "full parenting time," but that the child "can leave when she chooses to leave."
The testimony given by defendant and his girlfriend was largely directed at establishing that plaintiff and her husband were interfering with and not encouraging the first child to see defendant. Plaintiff's claim that she encouraged the child by reminding her of the puppy defendant was giving them, was attacked as not worthy of belief on the ground that defendant had not shared the information about the puppy with the plaintiff or the children. They also contended that the child was overheard telling her sister about her plan to leave and go to the dinner party when she arrived, suggesting that plaintiff's denial of an advance plan for departure was not accurate.
According to defendant, things had not improved. He had seen his sixteen-year old for no more than about fifteen hours from August to November 2011 and did not see her at all from Christmas Day 2011 to March 10, 2012.
Both parties testified about their interaction in matters involving the children. Defendant's attorney presented a recording of a conversation the parties had about parenting time. During that call, plaintiff berated defendant about a threat of juvenile detention for a child's non-compliance with defendant's parenting time, promised to make the children aware of his interest in such detention and swore that she would make sure they hated him for it. After hearing the tape in court, plaintiff apologized for her language but explained it by saying she was terrified by the prospect of their sixteen-year old being sent to a juvenile detention facility. There was no dispute that the second parenting coordinator, not defendant, raised the prospect of placement in a detention center. Defendant focused on plaintiff's refusal to speak to him about the children and her past interference with his parenting time.
Although plaintiff acknowledged that defendant was "a good father," she asserted that he needed "to work on some things with his children." She explained that given her inability to speak to defendant directly, the only way the parties could "focus on our children" was "in a therapeutic environment." In plaintiff's opinion, the parties' sixteen-year old was doing well in school and participating in extra-curricular activities but needed "intensive therapy" to rebuild her relationship with defendant. Claiming to understand that the situation was not "healthy for the children," plaintiff testified that she was willing to participate in counseling and work with a parenting coordinator to resolve the problems. She identified reasons the first and second child had given for resisting parenting time with defendant, including the litigation and defendant's tendency to select activities that his son but not his daughters would enjoy.
Dr. Montgomery's 2009 evaluation, moved into evidence by defendant's counsel, was based on interviews of the family members, including plaintiff's husband and his children and defendant's girlfriend, alone and together, and interviews of professionals involved with the family during the litigation. She had also conducted home visits, administered psychological tests and reviewed court documents and correspondence between the family members.
In 2009, Dr. Montgomery concluded that the parties had similar defense mechanisms "in that they are entrenched in denial, minimization, externalization, and the projection of blame." She explained, "While each has blamed the other as a culprit for the acrimony and hostility, both were found to be reactive, impulsive, and capable of angry outbursts." Dr. Montgomery observed that defendant was a "more dominant, goal-driven, and intense personality type," and that the plaintiff was "more submissive, dependent, and anxiety driven."
With regard to their parenting styles, Dr. Montgomery found that plaintiff viewed her role as "rescuer and protector." Defendant had a more structured, authoritarian approach, which in Dr. Montgomery's opinion, combined "with his compulsive tendencies, intensity and frustration level" could have been "experienced as harsh" by the children.
Dr. Montgomery noted that there were
seeds of truth in each parent's perspective regarding the children's visitation refusal. Although there is little doubt that the children were aligned with their mother entering the evaluation process, [she] did not determine that this was premeditated, purposeful, parental alienation. Likewise, [she] did not find there was anything that
the father identifiably did, past or present, to explain the magnitude of the children's reaction or the extent of their acting out behaviors. Rejecting either the pure parental alienation theory and/or the abusive father model, [she] found this to be a complex, multi-determined situation involving many converging dynamics. . . .
The dynamics the expert found important included the first child's entering her teenage years, the children's adjustment to living with their step-siblings, the children's diminished contact with their mother after her marriage and the increase in the time defendant had available to spend with them.
In Dr. Montgomery's opinion, the "reduction of either parent's time with the children would have a negative impact." She recommended a continuation of shared legal and residential custody and a prohibition against "all rescue-type transfers of custody." Dr. Montgomery also recommended against the parents discussing the litigation with the children. She concluded that there was a need to continue the family and individual therapy, and for all members of both parents' households to participate in an "Overcoming Barriers" program for estranged/alienated children.
Dr. Montgomery's updated 2012 evaluation was also based on documents and interviews of family members and the professionals involved with the family. She found the "dynamics" of the family "essentially unchanged" since 2009. In her opinion, a description of this situation as "high-conflict" was "an understatement" — one that did "not capture the enormity of the problems and the rigidity of the polarized belief systems maintained by the adults."
The rigidly fixed dynamics between the adults in this matter, their one-dimensional perspective of the problems and their hostility toward one another has, if anything, worsened. However, in spite of this grim picture, the interviews with the Lane children found them to be resilient, particularly given the war zone in which they find themselves. In general, they all excel academically, have amazing talents in their interests/activities area, and in many ways have flourished.
Dr. Montgomery found plaintiff to be "visibly distraught, overwhelmed, and 'burned out' by the ongoing litigation." "Her emotional fragility was palpable and clearly a decompensation from three years ago." Plaintiff "appeared ill-equipped to deal with the magnitude of this conflict." Plaintiff's parenting style, in Dr. Montgomery's opinion, remained "protective, extremely nurturing, and laissez faire/lateral," leading her children to feel protective of and aligned with her.
In contrast, Dr. Montgomery found that defendant "repetitively and obsessively provided evidence, data, and documentation, to support his contention that the children are victims of parental alienation." In her opinion, his "continual pursuit of litigation had been perceived by his children as aggressive toward their mother, as well as futile." She noted that the parties' sixteen-year old child, "in particular, tends to hold him responsible as the stronger, brighter, and more aggressive parent figure." And, she concluded that defendant was unable to conceal his "anger and bitterness" toward plaintiff and her husband. In her opinion, his view of plaintiff and her husband as solely "responsible for systematically alienating the children ha[d] blinded him to the relational difficulties" with his two eldest children.
Dr. Montgomery found that both parents failed to appreciate the impact that the litigation and their inability to accept any responsibility for their own contributions to the problem had on their children. With plaintiff, it was not so much what she did but what she did not do, and with defendant, it was his pursuit of equal parenting time that led him to lose sight of the children and what his effort to achieve equal time was doing to them.
With regard to the current parenting-time schedule, Dr. Montgomery reported that the first child, was "quite adamantly" refusing to "cave" to defendant's demands like plaintiff, had no intention of following any schedule given the demands of her academics, social life, and activities, and believed that if defendant were "awarded any specific amount of time, he [would] harass her to death until he gets 50-50."
The second child, who said defendant was "somewhat controlling," felt lonely without the eldest child and did not like the current parenting schedule because it required her to frequently switch between the households. She told the doctor she would prefer to remain in one place longer.
The youngest child, the parties' only son, had a positive relationship with defendant. Dr. Montgomery noted no complaints on his part.
Dr. Montgomery's recommendations included referral to a therapist for "therapeutic mediation" to address defendant's relationship with his first child and develop a parenting plan that the child could realistically follow; referral of family members to an "experienced therapist in high-conflict divorces and in child alignments;" and possible restructuring of the parenting plan "to provide greater consistency and few[er] transitions" given the ages of the children. With regard to sanctions for non-compliance, she suggested a "make-up time policy."
1. The October 23, 2012 orders.
Following the evidentiary hearing, the judge noted, quite properly, that the question of parental alienation was not before him on this hearing about interference with parenting time over the holiday season. The judge concluded that defendant failed to prove his allegation of interference during the period in question. In making that determination, the judge focused solely on the testimony presented at the hearing. He wrote:
The Defendant acknowledged that he agreed, on a temporary basis, that [the child] could come and go as she deems appropriate. While he does not agree that [the child] should dictate the parenting time he acknowledges that he has agreed, on a temporary basis, to the [child] leaving, when she wants to leave, as a condition [of] her attending parenting time.That was the basis for the judge's determination that "defendant did not meet his burden" of showing that he did not have the parenting time he was due or establishing that plaintiff had made other plans with the child during his time. Consequently, the judge denied the sanctions and attorney's fees defendant sought as a remedy for interference. The judge also denied plaintiff's request for an order compelling defendant to resume participation with the second parenting coordinator or Dr. Wilson. Instead, the judge appointed a therapeutic monitor and, pursuant to Rule 5:8B, a guardian ad litem to represent the best interests of the children.
Accordingly, the judge entered three orders on October 23, 2012. The first includes the determination recited above and others that are not at issue on this appeal. The second and third respectively detail the role and authority of the therapeutic monitor and guardian ad litem. Defendant challenges four paragraphs of the first order on this appeal, and plaintiff challenges none of them.
Defendant's first challenge is to the paragraph memorializing the judge's finding that defendant failed to prove his claim. He also challenges paragraphs two and three, which respectively deny defendant's requests for sanctions and attorney's fees, and paragraph 5, which denies plaintiff's request to participate with the parenting coordinator.
2. The November 14 and 15, 2012 orders.
The orders of November 14 and 15, 2012, concern a dispute that arose in July 2012 about defendant's summer parenting time. The impetus of the dispute was that plaintiff permitted the parties' daughters to serve as counselors at a summer camp near the place in Massachusetts where plaintiff was on summer vacation.
By order of July 2, the judge required plaintiff to have the second child delivered to defendant's home for his scheduled parenting time; authorized defendant to seek assistance from local law enforcement if plaintiff did not comply; and barred plaintiff, her husband and their agents from removing the parties' children from the State.
The July 18 order set forth the summer parenting time schedule for the period commencing on July 21 to August 18. It provided for defendant to have his time from August 4 to August 18, and for the parties' regular parenting schedule to resume on August 18. The July 18 order also required plaintiff "to use her best efforts to secure defendant's parenting time"; precluded plaintiff from accepting any decision the parties' second and third child would make about seeing defendant during his time; clarified that the restraint against removal imposed in the July 2 order referred to change in domicile not interstate travel not interfering with another's parenting time; denied defendant's requests for an immediate transfer of custody; and deferred consideration of plaintiff's request to amend parenting time until August 24, when the judge expected the ongoing plenary hearing on the holiday season of 2011-2012, then in progress, would be completed and the motion could be heard.
We limit our discussion to the provisions of the November 14 and 15 orders identified as challenged in the parties' respective notices of appeal.
Plaintiff and defendant both challenge the third paragraph of the November 14 order, which modifies defendant's parenting time for the second child to an alternating weekly schedule. The only difference between alternating weeks and the parties' original schedule for equal sharing is that alternating weekly involves fewer transitions from home to home. The judge explained that he was making that change based on Dr. Montgomery's updated report, which indicated that the second child's concern about the shared-parenting arrangement was the frequency with which she moved from one parent's home to the other.
Defendant challenges five other provisions of the November 14 order: paragraph two, which requires both parties to participate in therapeutic parenting with their first child; paragraph five, which denies defendant's application for another plenary hearing on enforcement of prior orders concerning the first and second children's participation in parenting, which denial is without prejudice to an application following therapeutic parenting with their first child and a change in the second child's parenting schedule; paragraph six, which provides that there will be no change in custody pending a plenary hearing; paragraph eight, denying defendant's application for an immediate transfer of custody without prejudice; and paragraph nine, denying defendant's application for attorney's fees without prejudice.
In a written decision issued with the November 14, 2012 order, the judge referenced the findings set forth in the written decision he issued with the October 23, 2012 order. In addition, the judge explained:
The Court has ordered therapeutic parenting time for [the first child]. The Court will not, at this point, address any sanctions which may be appropriate for any potential violation.
Hopefully, the parties will benefit by therapeutic parenting time to reach an understanding as to the underlying cause for the present parenting time issues and not to focus on what each perceives to be the cause of the present issues. As pointed out by Dr. Montgomery, the Plaintiff is wedded to a theoretical model of child maltreatment while the Defendant is wedded to classic parental alienation. . . . Dr. Montgomery believes tha[t] the joint course of the parenting time issues are complex and multidimensional. Some of the issues are caused by the Plaintiff's laissez faire and over-protective parenting style making limit setting difficult in contrast to the Defendant's authoritarian and harsher parenting style. . . .
With regard to defendant's application for sanctions, the judge found that defendant was "entitled to have the agreed upon and scheduled parenting time." He concluded, however, that monetary sanctions against plaintiff and her husband would not have a positive impact on the children's relationship with defendant — "harsh enforcement" will "only exacerbate the issues." Instead, the judge concluded that defendant's "parenting time with [the first child]" will likely be advanced through "therapeutic parenting time."
In denying defendant's application for an immediate change in custody, the judge found that although plaintiff had testified at the plenary hearing that she was undergoing therapy, there was no evidence that she could not "properly care for the children." With respect to plaintiff's travel to Massachusetts with the children, the judge explained that contrary to defendant's claim, the judge's prior order was not intended to preclude interstate travel that did not interfere with the other parents' parenting time and that defendant's applications concerning summer vacation, other than the requests for enforcement, were moot, presumably because the time at issue had passed.
Plaintiff's cross-appeal challenges paragraph two, of the November 15, 2012 order. It awards defendant two weeks additional parenting time as a remedy for plaintiff's failure to surrender the children to defendant for his parenting time on August 24, as required by the July 18 order.
The facts pertinent to make-up parenting time were undisputed. The July 18 order provided the summer schedule and it provided for the parties' regular schedule, on which weekends were alternated, to resume on August 24. Plaintiff had the children on the weekend preceding August 24, and thus she interfered with defendant's parenting time by not releasing them to him on August 24. The judge rejected, as untenable, plaintiff's assertion that the schedule had been modified by practice, because plaintiff had not made the claim when the July 18, 2012 order was considered and entered.
The judge denied, without prejudice, several other of defendant's applications, which he challenges on appeal: immediate transfer of temporary custody, paragraph three; referral to the county prosecutor, paragraph four; transportation, paragraph seven, which was a request for an order requiring plaintiff to pay expenses defendant incurred because plaintiff directed the bus company not to leave one of the children at defendant's home; and counsel fees for the September 14, 2012 order to show cause, paragraph nine. In addition, the judge flatly denied a referral of the parties' first child to Family Bridges, paragraph seven, and an immediate transfer of her custody to defendant, paragraph six.
In denying sanctions beyond make-up parenting time, the judge relied on his October 23 and November 14 decisions. In denying a referral to the county prosecutor, the judge noted that he had taken appropriate action; as the judge observed during oral argument on the motion, defendant could bring the matter to the attention of the prosecutor without a court order. The judge relied on Dr. Montgomery's report in denying defendant's request to compel his eldest daughter to participate in Family Bridges.
3. The February 6, 2013 orders.
The orders of February 6, 2013 are the last orders that are the subject of defendant's appeal in Lane III. Several competing motions were considered that day and addressed in separate orders and written decisions accompanying them.
Defendant sought reconsideration of prior orders, arguing that the judge improperly deferred enforcement to a therapeutic monitor and a guardian ad litem and ignored the ongoing irreparable harm inherent in plaintiff's chronic violations of the MSA and orders enforcing implementation of shared custody. Based on that claim, defendant urged the judge to grant that relief and to make a referral to the county prosecutor.
Plaintiff also sought reconsideration of prior orders. Her objections were to the make-up parenting time awarded defendant and the alteration of their second child's parenting time schedule, which plaintiff contended required a plenary hearing.
For reasons set forth in a written opinion issued with the orders, the judge amended the order addressing the therapeutic monitor to extend the monitor's role to both of the daughters' resistance to spending time with defendant but otherwise denied all relief requested by way of reconsideration, including an order requiring defendant to reimburse plaintiff for $4 675, one-half of Dr. Wilson's fee.
In addition, the judge awarded defendant $13,325.50 as a reasonable amount of defendant's fees incurred in the proceeding. Having received an affidavit of services from defendant's counsel, the judge carefully articulated his finding and reasons pertinent to that award in a written decision accompanying the order.
On appeal, defendant challenges the orders with the exception of the counsel fee award in his favor. Plaintiff challenges the award of counsel fees to defendant and the denial of her motion for reconsideration of the change in the second child's parenting schedule.
III
In this section of the decision, we address the parties' respective objections to the orders entered on October 23, November 14 and 15, 2012 and February 6, 2013. The issues raised in Lane III.
Defendant argues that error in failing to enforce and the delays in enforcing the custody and parenting time orders imposed a de facto termination of his parental rights in violation of the State and Federal Constitution and exacerbated the irreparable harm. He contends that the court established conditions under which plaintiff could "lose 50/50 custody" and failed to act when those conditions were met. He claims the court deferred enforcement to others by appointing a therapeutic monitor and guardian ad litem and made those appointments on incompetent evidence, failed to act when he observed plaintiff commit perjury, failed to adequately explain his decisions and erred in allocating responsibility to him for fees for a therapist who improperly assumed a forensic role.
These arguments have insufficient merit to require more than brief discussion beyond that already provided in the judge's several written decisions. R. 2:11-3(e)(1)(E). The necessary discussion follows.
The judge's conclusion that defendant failed to establish plaintiff's violation of his parenting time over the 2011-2012 Christmas to New Year's holiday is supported based on findings of fact that are adequately supported by the record. R. 2:11-3(e)(1)(A). Defendant's testimony established what plaintiff claimed, that he agreed in advance to allow the first child to dictate the amount of time she spent with him and to have plaintiff or someone acting on her behalf take her to plaintiff when she was ready to leave, as he had agreed in the past. Because the determination is adequately supported by the record, we affirm it.
We understand that defendant's position at the plenary hearing was more nuanced — a claim that plaintiff was obligated but failed to encourage and facilitate the first child's relationship with him and to prevent her husband from interfering with his parenting time actions that put him in a position where he had little choice but acquiesce to the child's wishes. But the focus of defendant's application for sanctions addressed in the October 23, 2012 order was narrow — his parenting time over one holiday season.
Furthermore, it is apparent that in finding no violation concerning this holiday parenting time, the judge did not ignore evidence pertinent to the broader questions about the children's best interests raised by the disturbing testimony of plaintiff and defendant about their interaction in matters involving the children. That testimony plainly showed that the arrangement was not working. For example, there was no dispute that it had come to the point that the parents were communicating only by email.
The parties' testimony alone, clearly supported the measures the judge imposed to address the underlying problems with this custodial arrangement. Based on plaintiff's testimony and the judge's observation of plaintiff's demeanor, the judge found her testimony about being overwhelmed and in need of professional help to communicate with defendant to be "forthright." In questioning her capacity to function without such assistance, the judge noted that plaintiff had overlooked obvious options she had to use as an incentive encouraging the recalcitrant child's cooperation — the child's interest in securing a learner's permit. The judge concluded that plaintiff had "failed to act in a manner to require" the child "to attend parenting time as scheduled with [d]efendant." Although defendant does not see it this way, the judge's appointment of a guardian ad litem and a therapeutic monitor to work on the family's communications about parenting were well-designed to address the problem.
Defendant, parsing the judge's written decision, perceives his determination that plaintiff failed to require their first child to follow the schedule as inconsistent with the judge's conclusion that defendant failed to establish interference with his custodial time on Christmas Day and New Year's Eve. Interference on particular dates is quite different than a parent's general incapacity to require a child to act as directed and to communicate with another parent about their children.
Moreover, defendant's testimony at the hearing includes nothing indicating that he had any insight into or interest in inquiring about what he could do to diminish the children's resistance beyond making repeated demands for compliance and insisting on sanctions. That testimony provided ample support for the judge's determination that defendant also needed assistance to address the children's resistance to seeing him.
The judge did not ignore but took remedial action to identify the underlying problem in the best interests of the children, which is what a judge should do. First, consistent with the undisputed lack of parental cooperation and inability to communicate productively, he appointed a therapeutic monitor. As the judge explained, he did that with the expectation that a professional would attempt to "assist [the child] and her parents to understand what issues [the child] finds present and to hopefully address the issues." Given the deference this court owes to expertise of the judges of the Family Part in such matters, there is no basis for us to conclude that the judge abused his discretion in taking that approach. It is consistent with the options available pursuant to Rule 5:3-7(a)(5), which authorizes counseling for the children and parents to address non-compliance with parenting arrangements.
The judge did not inappropriately delegate his authority to make or unnecessarily delay a determination about custody. The terms of the February 6, 2013 order grant the monitor nothing more than authority to gather information and "assist the parties." Defendant objects to a therapist reporting to the court, but there is not a problem with privilege if the parties have prior notice of the fact that a therapist or evaluator will report to the judge on notice to the parties. If one arises, it can be addressed.
Nor was the appointment of the guardian ad litem a measure that unduly delayed a determination. In appointing the guardian, the judge recognized the need for a best interests' hearing in the event the parents could not address their mutual problem with the assistance of the therapeutic monitor. The evidentiary hearing indicated that the parties were primarily committed to presenting their respective sides. Such appointments are authorized by Rule 5:8B where the circumstances indicate that it is appropriate to have a person other than the parents represent the children's best interests. In this case, the appointment was well-within, and not an abuse of, the judge's broad discretion. Indeed, these measures are very consistent with the goals the parties set for themselves in the MSA.
Defendant's objections to the judge's handling of his subsequent enforcement motions addressed in the orders of November 14 and 15, 2012 and February 6, 2013 are similarly lacking in merit. Defendant filed the motions seeking relief from denial of his summer parenting time while the plenary hearing on the Christmas-New Year's holiday was in progress. And, the judge did award defendant two weeks' make-up parenting time and counsel fees as a remedy for one of the summer violations.
True, the judge did not grant the punitive relief defendant sought on his enforcement motions and may have been in error in denying defendant's request for a remedy for the first violation of his summer parenting as moot. But as discussed in Part I of this opinion, the remedies for violations of orders governing parenting time are not imposed to punish, they are imposed to encourage compliance in the future and, more importantly, must be consistent with the children's best interests.
The best interests of children in a case such as this do not readily translate to resolution by counting the hours and minutes of time with each parent. The judge did not abuse his discretion in imposing make-up parenting time for a blatant violation and fashioning remedies for other shortcomings that were in the children's best interests because their parents could not cooperate unless they developed the skills and insight they needed to move forward instead of dwelling on perceived prior wrongs and repeatedly embroiling their children in the controversy. That is the path the judge chose.
As we discussed previously, the change from shared-physical custody to sole custody that defendant requested multiple times as a remedy for violations of his parenting time cannot be made without a determination that the change is in the children's best interests. The judge simply did not have the information needed to make an informed decision on that question. In fact, defendant's approach — repetitive enforcement motions and appeals from narrow orders — was ill-conceived because it was likely to delay and further complicate the best interests' inquiry. In this regard, it is worth noting that defendant took several steps that effectively limited the information available to the judge. He opposed having the judge interview the children in connection with the plenary hearing, and at the plenary hearing the attorney representing him, not the attorney on this appeal, moved expert reports into evidence and made no request to have the experts testify, even though the testimony was taken on multiple days over several months, providing ample opportunity for a request to call an expert.
Defendant raises a specific objection to a provision of the order requiring him to reimburse plaintiff for fees she paid to a therapist appointed by the court. Specifically he contends that the therapist was suspended. Finding no support in the record for that assertion, we reject this argument. As we understand the record, the judge replaced the therapist after that therapist had provided services, for which the therapist was entitled to payment regardless of defendant's objections to how the therapist performed them. The February 6, 2013 order simply enforces defendant's obligation under prior orders of June 14, 2010 or February 1, 2011, which are not the subject of either of these consolidated appeals.
Plaintiff contends that the judge erred in altering the parenting schedule for their second child based on hearsay included in Dr. Montgomery's updated evaluation report and without a plenary hearing. Dr. Montgomery's report was part of the court's record, and she reported that this child was interested in less frequent changes in custody but not opposed to an equal sharing of her time.
We decline to consider this claim because of the subsequent orders the judge has entered to bring this protracted litigation to a conclusion. This change in the child's schedule is minor; it retains the equal sharing to which the parties agreed, without disruptive mid-week transfers of custody, which become more disruptive as children mature and are involved in activities and studies. Dr. Montgomery's report was part of the court's record, and she reported that the child favored a schedule for equal sharing of her time that involved fewer transfers of physical custody. In the context of this case, the change the judge made is a minor detail and reliance on an expert's report pending fuller exploration by the parents with a therapeutic monitor was not an abuse of discretion.
Plaintiff challenges the judge's award of make-up parenting time and counsel fees to defendant based on her violation of the parenting arrangement in late August 2012. We affirm those determinations substantially for the reasons stated by the judge in the written decision accompanying those orders. Any claims of error that we have not addressed have insufficient merit to require any additional discussion. R. 2:11-3(e)(1)(E). Nonetheless, in our view as discussed more fully in Part IV, the parties' continuing inability to set aside their hostilities and cooperate in the best interests of their children, as joint-physical custodians, needs to be addressed.
IV
We turn to consider the orders of October 25, 2013, that defendant challenges in Lane IV.
In July 2013 defendant opened a second front in the ongoing battle with plaintiff. He did that with his sudden resistance to paying half of the tuition for the parties' daughters at a private high school that they had each attended since completing elementary school. As previously noted, the parties' property settlement agreement expressly addressed tuition for elementary school and college but not high school. Defendant, however, had agreed to the first child's enrollment in this private high school and to paying one-half the tuition. He had also paid one-half of the second child's tuition for her freshman year at that high school.
Despite his prior cooperation with and support for the children's attendance at this high school, in response to an inquiry from plaintiff in July 2013, defendant only agreed to reimburse plaintiff for half the tuition costs at the end, not the start, of the school year. Moreover, his agreement was conditional and did not involve any claimed inability to pay or objection to the school. Defendant's offer to reimburse was conditioned on plaintiff's meeting his demands. Those demands were an immediate restoration of an equal sharing of the children's custodial time and plaintiff's and her husband's compliance with all orders concerning parenting being met throughout the school year. Defendant's objection was based on the quality of his recent relationship with the children, which led him to oppose funding this educational cost as he had in the past.
Plaintiff sought relief by way of an order to show cause, which the judge converted to a motion. Defendant opposed the motion, and his argument focused on the pending appeal in Lane III. Lane III, as the foregoing discussion indicates, concerns nothing other than parenting time.
In addition to opposing plaintiff's motion, defendant filed a cross-motion seeking unrelated relief. He sought a temporary transfer of custody, enforcement of prior orders, relief in the form of monetary sanctions and additional make-up parenting time, all as relief for alleged violations of the parenting orders in place.
For reasons stated in a written decision of October 25, 2013, the judge granted plaintiff's application to compel defendant's continued contribution to his children's high school education. The pending appeal in Lane III did not bar the judge from addressing high school tuition, because it is wholly collateral to and independent of any issue implicated by the parties' battle over parenting time. Van Horn v. Van Horn, 415 N.J. Super. 398, 410-11 (App. Div. 2010).
We affirm that aspect of the order substantially for the reasons stated by the judge. Defendant, by his course of conduct over three prior school years, impliedly agreed to contribute to these children's attendance at this private high school and did not assert that he no longer had the ability to make that contribution. In this circumstance, the factors that have been identified as pertinent to parental obligations to contribute to the cost of private education were not implicated. See Hoffers v. Jones, 288 N.J. Super. 590, 611-12 (Ch. Div. 1994), aff'd o.b., 288 N.J. Super. 478 (App. Div. 1996). On the facts of this case, we see no reason to delve into the question of whether the quality of a parent's relationship with a child has the same relevance to high school tuition as it does to college tuition.
Defendant is correct in arguing that the judge had authority to enforce its orders while his appeal and plaintiff's cross-appeal in Lane III were pending. R. 2:9-1(a). Defendant is also correct that the violations he alleged were "ripe" for adjudication. Accordingly, a remand for the judge to consider the merits is warranted. We reject, as wholly unwarranted, defendant's request to direct the assignment of another judge to address those claims. There is nothing in this record that suggests that the judge has made any determination about whether a modification of the custody arrangement is warranted in the best interests of the children.
Faced with another enforcement motion alleging a multitude of violations of the court's orders concerning parenting by plaintiff, the judge should have taken some action. After all, the judge had already found that plaintiff knowingly and inexcusably disregarded her obligations under the court's orders and imposed sanctions in the form of make-up parenting time for defendant. By that observation, we should not be understood to suggest that the judge did not have the discretion to take action other than conducting another hearing to adjudicate the multitude of individual violations defendant alleged.
In this case, there is another option available. Judges of the Family Part have broad discretion to act in the best interests of children whose parents are embroiled in a custody dispute. See Beck, supra, 86 N.J. at 488 (concluding that a judge has discretion to impose a near equal sharing of physical custody, although neither parent requests it, when such an arrangement is in the best interests of the children). As discussed in Part I of this opinion, shared parenting arrangements are appropriate in a limited class of cases. Ibid. A judge may not order a joint custodial (equally shared-physical custody) arrangement unless the child perceives both parents as a "source[] of security and love"; both parents are capable of "fulfilling the role as parent"; both are "willing to accept custody"; and both "exhibit a potential for cooperation in matters of child rearing," which requires both to have an ability "to isolate their personal conflicts from the roles as parents" so that "the children can be spared whatever resentments and rancor the parents may harbor." Id. at 497-99.
Here repeated post-judgment applications to enforce shared-physical custody make it clear that if they ever existed, the essential circumstances for shared parenting no longer exist. These parties have demonstrated their inability to set their conflicts aside in the best interests of their children. To put it mildly, the children clearly have not been spared their parents' resentments and rancor. Indeed, they have become the focal point of the rancor.
Perhaps out of concern about being the one to lose, neither party has urged a best interests' hearing based on changed circumstances apart from the narrow question of the second child's new schedule. Plaintiff has apparently been well-served by simply allowing her children to dictate their schedule without regard to the court's orders. Defendant has opted to respond by taking a different approach, seeking to obtain sole custody not on a showing of the children's best interests but as a sanction for plaintiff's well-established disregard of her obligation to support the children's relationship with their father. Just as a judge may order shared custody where the parties do not request it, a judge may and should order a hearing to determine what custodial arrangement would be in the children's best interests when the post-judgment motion practice of their parents makes it clear that the arrangement in place is not serving their children's best interests.
Affirmed in part and remanded for further proceedings on the claims in defendant's last enforcement motion in conformity with this opinion. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION