APPELLATE COURT HANDS DOWN INTERESTING DECISION RELATED TO CUSTODY TRIALS
On appeal from a decision rendered by the now-retired Judge Camp of Essex county, the Appellate Division's affirmation of Judge Camp's decision in the matter of Robert Goldman v. Gail Mautner is one that details and describes the unfortunate but all too common realities that occur during contested custody trials in the family court., though this case appears to be almost as bad as it gets.
This appeal stemmed out of defendant's displeasure with Judge Camp's determination that the parties should share joint legal and physical custody of the children despite defendant's allegations that plaintiff was an unfit parent and unfounded allegations of abused by plaintiff on the children.
After a 29 day trial limited solely to the issues of custody and parenting time, Judge Camp rendered a detailed 33 page opinion whereby he determined that it was in the best interest of the children to have shared legal and physical custody with their parents.
During the trial, both parties initially sought sole custody of the two children of the marriage. Plaintiff later changed his position to joint custody while defendant remained steadfast for sole custody. This litigation commenced in 2003 after the parties had been married for approximately 10 years. Defendant claimed that plaintiff was abusive to her as well as the children. DYFS conducted an investigation and hired an outside expert to evaluate the parties and children. After such an evaluation it was determined that there was no abuse substantiated by the plaintiff against the children and rather that the children had been programmed to allege same without fully understanding or appreciating the effects of their allegations. Supervised parenting time was recommended by the DYFS expert only so that plaintiff would be protected against further baseless allegations. Testimony was offered during the trial by the supervisors relating to incidents where the children made unfounded allegations of abuse during times when the supervisors were present and noted that these allegations were fictitious.
Defendant's appeal raised several issues relating to alleged bias of Judge Camp against her, error by the trial court in not permitting the live testimony of lay witnesses on defendant's behalf, error by the trial court for not interviewing the children, and alleged error by the trial court for not requiring the experts to update their reports prior to trial.
In it's unreported (non-precedential) opinion, the Appellate Division found defendant's claims of bias by Judge Camp unfounded and unsupported by the record below. They also found sound Judge Camp's decision and rationale for prohibiting the testimony of defendant's lay witnesses as these witnesses were only to provide testimony based on information provided by defendant, to which she had already provided her own live testimony. Furthermore, Judge Camp allowed defendant to submit proffers as to these witnesses testimonies and allowed the proffers into the record without providing plaintiff the benefit of cross examination.
Lastly, the Court noted that there is no requirement in the Court Rules that a trial judge interview children in a family matter or experts retained in a family must update their reports prior to trial. As to the interview of the children, both parties' experts testified that at this point interviewing the children would be counterproductive as they had been through many years of extensive therapy related to this litigation. The Court also noted that since the parties had privately retained their own experts in this matter, it was not incumbent upon the court to require those experts to submit updated reports. If defendant felt that new pertinent information was available for her own expert to review, she could have had her expert update her report, which she did not do.
An interesting portion of the Appellate Division's decision noting Judge Camp's decision were the portions that related to the credibility of the parties upon their testimony and demeanor during the trial. Whenever the scrutiny of the court is upon a litigant, judges are carefully observing demeanor and judging credibility. In the midst of highly contentious trials, such as this one appeared to be, clients may forget the all too simple tenants of civility, however it is in their own best interest not to.
EDITOR'S NOTE: This case evidences some of the absolute worst that can arise in family court cases. There was a finding by the trial judge that the wife actively tried to alienate the children from their father. There have been several recent posts on this blog regarding parental alienation.
In addition, it is rare that one sees that a parent's parenting time is supervised to protect that parent from wrongful allegations. In this case, it appears that the alienation was so bad that allegations arose even when supervisors were present. In this case, it appears as though the father's parenting time with the children was compromised for years. The damage that this could seemingly cause to the relationship seems unthinkable. Moreover, the legal and other costs associated with had to be staggering.
It would appear that the cause of action for intentional infliction of emotional distress raised in the prior blog posts and recently approved by Judge Galipoli in Hudson County, appears as appropriate in this case as in any other. It seems hard to imagine that the father here can ever get back what he has lost. Should there not be some kind of monetary punishment here - an award of legal fees just does not seem to be sufficient. Perhaps that will be an issue in the financial aspect of the case which was apparently not resolved. ERIC S. SOLOTOFF
