RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3918-15T2

NEW JERSEY DIVISION

OF CHILD PROTECTION

AND PERMANENCY,

Plaintiff-Respondent,

v.

J.J.,

Defendant-Appellant,

and

J.B. and T.M.,

Defendants.

____________________________

IN THE MATTER OF S.B., M.B.,

and E.B., 

Minors.

____________________________

Argued October 4, 2018 – Decided March 1, 2019

Before Judges O'Connor, Whipple and DeAlmeida.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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A-3918-15T2

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Bergen County, 

Docket No. FN-02-0136-14.

John L. Weichsel argued the cause for appellant.

Victoria Kryzsiak, Deputy Attorney General, argued 

the cause for respondent (Gurbir S. Grewal, Attorney 

General, attorney; Jason W. Rockwell, Assistant 

Attorney General, of counsel; Victoria Kryzsiak, on 

the brief).

Olivia Belfatto Crisp, Assistant Deputy Public 

Defender, argued the cause for minors (Joseph E. 

Krakora, Public Defender, Law Guardian, attorney; 

Olivia Belfatto Crisp, on the brief).

PER CURIAM

Defendant J.J. (father) appeals from the March 8, 2016 order denying his 

application for physical custody of his son, E.B. (Eric), presently age 

fourteen.1 Defendant J.B. (mother) is Eric's mother. After reviewing the 

record and applicable legal principles, we affirm in part, reverse in part, and 

remand for further proceedings.

I

Plaintiff New Jersey Division of Child Protection and Permanency 

(Division) has been involved with the parties for a number of years, which has 

 

1

 We use initials and pseudonyms to protect the privacy of the parties and 

their son.
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included investigating allegations of abuse and neglect pertaining to Eric and 

the mother's three children from another relationship, Eric's half-siblings.

2

 

Eric is the father's only child. The mother, Eric, and Eric's half-siblings have 

lived in the same household from the time of Eric's birth.

Eric has significant emotional problems and is deemed emotionally 

disturbed. He has an anxiety disorder that has been determined to be severe 

and causes him to experience, among other things, separation anxiety. He 

attends a school for children who have emotional difficulties. In 2013, the 

Division received referrals about the children's hygiene, their chronic tardiness 

at school, and the mother's mental health. The Division investigated and 

established both parents had committed acts of neglect. The Division provided 

in-home services to the mother to assist her with parenting.

In July 2013, the father filed a complaint seeking custody of Eric. 

Among other things, the father alleged the mother alienated Eric from him. Up 

until 2013, the father enjoyed regular and frequent parenting time with his son. 

In October 2013, the Division filed an order to show cause and complaint for 

care and supervision of Eric and his three half-siblings.

 

2

 Defendant T.M. is the father of Eric's half-siblings. The claims against T.M. 

are not the subject of this appeal.
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The court granted the order to show cause, which included directing that 

Eric remain in the mother's physical custody because he had become 

increasingly resistant to seeing his father. Evaluations of the parties and 

children and various services designed to restore Eric's relationship with his 

father were ordered. However, Eric steadfastly refused to engage in visitation 

with his father over the next three years. The Division attempted supervised 

visitation of the father and Eric, but to no avail. According to a Division 

worker, during one such visit, the child was "sobbing" and appeared to be "in 

torture."

In August 2014, the court suspended the father's obligation to pay the 

mother child support in an effort to induce her to cease alienating Eric from 

the father and to encourage her to facilitate parenting time between them. The 

court subsequently modified that order, directing half of such child support be 

paid to the mother and the other half deposited into a trust account.

In December 2014, the court commenced a hearing on the father's 

application for physical custody of Eric, which was conducted on sporadic 

dates throughout 2015 and concluded in January 2016. During the hearing 

various experts testified. All agreed the mother had alienated the child from 

the father; the issue was whether the appropriate remedy was to transfer Eric to 
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his father's physical custody. The father's expert, Linda J. Kase, L.C.S.W., 

opined the only remedy was to transfer Eric to the father's sole physical and 

legal custody, and sever all contact between the mother and child until the 

mother had engaged in therapy with an "alienation aware" therapist and the 

therapist certified the mother understood her conduct had constituted child 

abuse. Kase did not meet with and examine Eric.

Other experts testified Kase's recommendation was too extreme in light 

of Eric's mental health problems, and instead recommended continued therapy 

and gradual exposure to the father to help Eric overcome his reluctance to 

interact with him. One of those experts was Eric's therapist, William M. Shea, 

III, Ph.D., who testified transferring custody of Eric to his father would be 

"traumatic" for Eric and send him into "a total panic," because Eric would be 

separated from his mother and siblings. Shea was also concerned Eric may run 

away if placed in his father's home, which would be especially problematic 

because the father lives in Maryland. However, Shea also testified the child 

was progressing in therapy and was able to tolerate discussing his father, when 

in the past he had refused to do so. Shea was also of the opinion it was time to 

"turn up the pressure a little bit on [Eric]."
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Psychiatrist Sonia Oquendo, M.D., agreed with Kase's assessment the 

mother sabotaged the relationship between the father and child. Oquendo 

acknowledged she is not an expert in alienation, but did render – and there was

no evidence she was without expertise to do so – the following opinion. After 

examining Eric, she determined he would experience "tremendous anxiety" if 

forced to live with his father. Being separated from his mother, siblings, 

therapist, and current school would be a "trauma-like experience." To relieve 

his anxiety, Eric might run away or engage in conduct potentially dangerous to 

himself. She recommended a gradual approach to reestablishing a relationship 

with the father, starting with texting, telephone conversations, and then visits.

At the conclusion of the hearing, the court found the mother had engaged 

in conduct designed to alienate Eric from his father. However, the court

accepted and relied upon the testimony of those experts who concluded Eric's 

mental health problems precluded him from being placed in his father's 

immediate custody, given Eric would suffer significant anxiety and trauma, 

and might engage in conduct that would be injurious to himself. Therefore, 

because it was not in Eric's best interests, the court denied the father's 

application for physical custody, entering an order to that effect on March 8, 

2016. It is from this order the father appeals.
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In addition, the order suspends the father's obligation to pay child 

support to the mother. Instead, the father must deposit the child support 

payments that would have otherwise gone to the mother into an interestbearing account. The money in such account is to be used for Eric's postsecondary education but, if Eric does not visit his father by his senior year in 

high school the father may, at his discretion, withhold such funds from Eric.

II

On appeal, the father raises the following points for our consideration:

POINT I - ALLOWING ALIENATING PARENT TO 

RETAIN SOLE CUSTODY WAS ABUSE OF 

DISCRETION; COURT OVERLOOKED 

CONTINUING EMOTIONAL AND PHYSICAL 

ABUSE OF CHILD.

POINT II - COURT ABUSED DISCRETION IN 

RELYING SOLELY ON EXPERTS TO 

DETERMINE CUSTODY; EXPERTS AGREED 

CUSTODY TRANSFER MIGHT BECOME 

NECESSARY.

POINT III - COURT ABUSED DISCRETION IN 

OVERLOOKING FACTORS UNDER N.J.S.A. 9:2-

4(C), I.E., DYSFUNCTIONALITY OF HOME, 

FATHER'S FITNESS, PRIOR RELATIONSHIP AND 

ABUSE OF CHILD.

POINT IV - COURT FAILED TO ENFORCE 

ORDERS AGAINST ALIENATING PARENT WHO 

WAS IN CONTINUOUS CONTEMPT.
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POINT V - ORDER CUTTING OFF CHILD 

SUPPORT WAS INEFFECTUAL WHERE IT 

PREVIOUSLY FAILED TO RESTORE VISITATION 

WITH FATHER; COURT SHOULD HAVE 

MAXIMIZED VISITATION.

POINT VI - COURT ERRED IN APPLYING NONBINDING NEW YORK LAW WHILE DEVIATING 

FROM NEW JERSEY ALIENATION CASES. (Not 

raised below).

POINT VII - IN FAILING TO PROVIDE ANY 

REMEDY, COURT EFFECTIVELY TERMINATED 

FATHER'S RIGHTS, DEPRIVING HIM OF 

CONSTITUTIONALLY MANDATED 

RELATIONSHIP WITH CHILD.

Appellate review of family court decisions is limited. N.J. Div. of 

Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). "[F]indings by [a] 

trial court are binding on appeal when supported by adequate, substantial, 

credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, 

"[b]ecause of the family courts' special jurisdiction and expertise in family 

matters, appellate courts should accord deference to family court factfinding." 

Id. at 413; see also F.M., 211 N.J. at 448 (noting the cold record may not 

adequately convey what happens in a courtroom). Such deference is especially 

warranted when custody issues are present. See Abouzahr v. MateraAbouzahr, 361 N.J. Super. 135, 157 (App. Div. 2003) (citing DeVita v.

DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976)).
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A trial court's conclusions on custody are "entitled to great weight and 

will not be lightly disturbed on appeal." DeVita, 145 N.J. Super. at 123 (citing 

Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div. 1951)). Of course, 

deference is not appropriate if the trial court's findings "went so wide of the 

mark that a mistake must have been made." N.J. Div. of Youth & Family 

Servs. v. M.M., 189 N.J. 261, 279 (2007).

After reviewing the record and applicable legal principles, for 

substantially the reasons set forth in its comprehensive written opinion, we 

affirm the trial court's decision to reject the father's application for custody. 

The court placed "great weight" upon the testimony of those experts who 

warned against removing the child from his mother's physical custody. The 

court had the discretion to rely on these experts' opinions to inform its 

decision. See Bisbing v. Bisbing, 230 N.J. 309, 336 (2017) (noting courts rely 

heavily on the expertise of psychologists and other mental health professionals 

when determining in a custody matter what is in the best interest of the child

(citing Kinsella v. Kinsella, 150 N.J. 276, 318 (1997))). There is ample, 

credible evidence in the record to support the trial court's decision to reject the 

father's request for custody at this time.
10 A-3918-15T2

We do not condone the mother's actions to alienate the child from his 

father. What she did is reprehensible. But Eric's best interests must govern. 

"[T]he primary and overarching consideration [in an action for custody] is the 

best interest of the child." Kinsella, 150 N.J. at 317 (1997) (citing Fantony v. 

Fantony, 21 N.J. 525, 536 (1956)). Eric is an emotionally fragile child and 

there is compelling evidence being separated from his mother and siblings will 

cause him to suffer serious harm. Under the unique circumstances of this case, 

we agree placing Eric in his father's custody is not a remedy that furthers this 

child's best interests.

We considered the points the father asserts on appeal and, with the 

exception of one, determined they do not merit discussion in a written opinion. 

R. 2:11-3(e)(1)(E). However, we do part company with the trial court's 

decision to withhold child support payments from the mother. We understand 

the court was endeavoring to induce the mother to encourage contact between 

Eric and the father by withholding child support from her, but child support 

belongs to the child and is for his benefit.

"The purpose of child support is to benefit children, not to protect or 

support either parent. Our courts have repeatedly recognized that the right to 

child support belongs to the child, not the custodial parent." J.S. v. L.S., 389 
11 A-3918-15T2

N.J. Super. 200, 205 (App. Div. 2006). Moreover, here, Eric cannot be blamed 

for his mother's deplorable, inexcusable conduct. Although the child support 

has been deposited into an account for Eric's benefit in the future, the 

difficulty with such remedy is Eric is entitled to support now, not to mention, 

depending on the circumstances, the father may not be responsible for 

contributing toward the cost of attending college. See generally Newburgh v.

Arrigo, 88 N.J. 529, 545 (1982) (setting forth the factors to be considered 

when evaluating a claim for contribution toward college). Therefore, the child 

support to which he is now entitled should not be used to create a fund for 

college.

The trial court is not without remedies to force the mother to encourage 

Eric to reconnect with and enjoy a relationship with his father, see R. 1:10-3 

and R. 5:3-7(a), but withholding child support is not one of them. Rule 5:3-

7(a)(2) provides economic sanctions may be imposed upon a party who has 

violated a custody or parenting time order. Rule 5:3-7(a) does not state a child 

may be sanctioned. By withholding child support, in effect the child is being 

punished. There are other remedies available to incentivize the mother to 

facilitate a relationship between Eric and his father.
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Accordingly, we reverse and vacate those provisions of the March 8, 

2016 order pertaining to child support. We remand this matter to the trial 

court so that it can enter an order stating the father shall resume paying child 

support directly to the mother. More important, the court shall determine and 

implement forthwith those remedies permitted by law that will enable Eric to 

repair and restore his relationship with his father. Of course, those remedies 

antithetical to Eric's best interests may not be used.

We leave to the court's discretion to determine whether it requires an 

update from Eric's current therapist3 or other information, including but not 

limited to an interview of Eric, to decide how best to accomplish the goal of 

reuniting Eric with his father. The court must also conduct case management 

conferences every thirty days to evaluate the progress Eric is making to 

reestablish his relationship with his father.

Affirmed in part, reversed in part, and remanded for further proceedings 

consistent with this opinion. We do not retain jurisdiction.

 

3

 We were informed during oral argument that Shea has died.