                        RECORD IMPOUNDED

                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

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

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

K.M.,

     Defendant-Respondent.

________________________________________________________________

         Argued December 3, 2013 – Decided December 26, 2013

         Before Judges Fisher, Espinosa and Koblitz.

         On appeal from Superior Court of New Jersey,
         Chancery   Division,  Family   Part,  Morris
         County, Docket No. FM-14-785-12.

         John M. Barbarula argued the cause for
         appellant (Barbarula Law Offices, attorneys;
         Mr. Barbarula, on the briefs).

         James C. Jensen argued the cause for
         respondent (Laufer, Dalena, Cadicina, Jensen
         & Boyd, L.L.C., attorneys; Gregory D.R.
         Behringer, on the brief).

     The opinion of the court was delivered by

KOBLITZ, J.A.D.
     We granted plaintiff S.M. (Steve1) leave to appeal from a

June 10, 2013 order preventing him from having any contact with

his two children until the criminal charges against him are

resolved.          Steve    seeks   supervised        therapeutic        visits    as

recommended    by    two    court-appointed        experts.     We    reverse     and

remand for a hearing before the Family Part judge at which the

prosecutor, criminal defense attorney and two family lawyers may

be heard.     We arrive at this conclusion relying on Rule 5:12-6

and a directive from the Administrative Office of the Courts

(AOC).2      See    AOC     Directive    03-09     (Directive)       (relating     to

visitation when an abuse and neglect case is heard in the Family

Part while a parent has criminal charges pending).

     Plaintiff and defendant K.M. (Kim) were married in 1998 and

had two children, Jim, born in 2004, and Mary, born in 2000.                        On

November    18,     2011,    plaintiff       was   served     with   a    temporary

restraining order (TRO) at his home based on allegations that

Steve placed a loaded BB gun to Jim's head at some point between

November 8, 2009 and November 11, 2011 and that he was abusive

to Kim.     The incident with the BB gun was reported to police by

Jim's school after his teacher overheard Jim tell a friend that


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



                                         2                                  A-6096-12T3
"daddy put a gun" to his head and "dad is mean."                    Defendant,

K.M.    (Kim)   admitted    during     her   interview      with   the     court-

appointed expert that there is significant ambiguity with the

child's statement.

       After obtaining Steve's legally registered handgun, police

discovered illegal hollow point bullets and plaintiff was later

charged with a weapons offense.

       On December 1, 2011, Steve filed a complaint for divorce.

A January 3, 2012 order reflected the parties' consent to Kim

retaining   temporary      custody    of   the   children   and    Steve    being

prohibited from any "form of contact" with Kim.                    The consent

order   acknowledged    that    Kim    voluntarily     dismissed     her      TRO,

relying on the January 3 no-contact order, and that violation of

"the no contact provision of this Order by Plaintiff shall be

considered an indicia of an act of domestic violence[.]"                       The

consent order also provided that Steve "shall have visitation

with the minor children of the marriage in accordance with the

dictates of the Morris County Prosecutor's Office and/or the

Court[.]"

       In February 2012, the family judge appointed Lee Monday,

Ph.D. to provide a visitation and custody evaluation of Steve.

A week later, Steve consented to a drug and alcohol assessment

to be performed by Gregg Benson, M.A., C.A.D.C., C.M.S.




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

(Division) sent a letter to Kim explaining that it investigated

allegations of abuse and neglect against Steve and "determined

that    child    abuse    was    substantiated."             The    Division    took     no

further action.

       On June 4, 2012, Dr. Monday submitted a detailed, single-

spaced, twenty-one page custody and visitation report with the

court    after     interviewing          all       members    of     the     family    and

administering psychological tests to Steve.4                       Kim told Dr. Monday

that "[h]er children have clearly stated that they do not want

any relationship with their father.                       They are traumatized and

fearful of him.          [Kim] does not believe that it would be best

for them to even have supervised visits with [Steve]."                                 The

report concluded that the case "is essentially a classic he

said,    she    said[]"    in        which   Kim    and    Steve     provided    starkly

different       accounts        of     Steve's       drinking       habits      and    his

relationship      with     their        children.            Dr.    Monday     found    it

noteworthy that the children referred to their relationship with

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



                                             4                                   A-6096-12T3
Steve using the collective "we," which, in the expert's opinion,

made     it   "difficult     to    tell    if      it    was     truly      the     child's

individual      perception    of    the     father       or     if    it    is     a    joint

perception      shared     with    the    mother."             "The    goal       for    this

family[,]" Monday opined, "is for [Steve] and his children to

have a positive relationship."              He also noted that the children

must feel safe and Steve cannot drink alcohol in their presence.

Dr. Monday recommended that the children see a psychologist or

counselor with expertise in "high conflict divorce cases" and

that Steve should join the sessions once the children develop

rapport with the counselor.               "What would follow depends on how

these sessions go[,]" the report stated.

       On August 3, 2012, the criminal judge maintained the "no

contact" condition of bail, explaining that he would "follow a

ruling from the family judge on that issue."                          On September 25,

the    family    judge     denied        Steve's        request       for     therapeutic

visitation,     finding     that    it     would    be     contrary         to    the    best

interests of the children.

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

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

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

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

1b(4).




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

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

Steve.     Benson conducted several tests that are recognized in

the   field   and    formed   the    impression    "from   all   the    gathered

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

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

Among    other   recommendations,      Benson     concurred   fully    with   Dr.

Monday's visitation recommendations.

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

therapeutic visitation with his children certifying that he had

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

seeking psychological treatment and that he should be permitted

visitation based on the recommendation of the two experts.

      Without oral argument, the judge denied Steve any contact

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

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

convinced     that   granting       Plaintiff's    request    for     supervised

therapeutic visitation would be in the best interest of the

children during the pendency of the criminal proceedings against

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

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



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

with their father is an extreme measure that, if improperly

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

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

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

such an "extraordinary proscription that it should be invoked

only    in     those     exceptional        cases    where     it    clearly        and

convincingly appears that the granting of visitation will cause

physical     or   emotional    harm    to    the    children    or   where     it    is

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

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

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

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

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

parent and are "recognizing the need for continued contact with

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

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

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

custodial      parent,    it   is     instructive      to     look   at   the       law

controlling child protective services cases.

       Not only do parents have a constitutional right to enjoy a

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

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




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

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

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

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

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

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

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

generally       fostered     when        both   parents     are   involved     with    the

child, assuring the child of frequent and continuing contact

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

523 (App. Div. 2006).

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

filed    against      a    parent    or    guardian     arising    out    of   the     same

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

determine       the       nature    and     scope     of     parental     or     guardian

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

"scheduling any hearing at which visitation conditions are to be

imposed    or    modified,         the    court     shall   provide     notice    to    the

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

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


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



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

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

child   abuse/neglect        case       entered         after      any   restrictions         on

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

Here, the criminal judge specifically deferred to the family

judge as required by the Rule.

    The     Administrative          Office         of        the    Courts      promulgated

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

cases in which an abuse and neglect case is filed concurrently

with a complaint alleging domestic violence against the child.

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

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

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

protective services action and a criminal complaint against a

parent.    Directive at 2.

        The purpose of the directive is to provide "operational

guidance" to judges and staff in achieving the statutory mandate

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

violence    that   occurs     in    a    family         or   family      like    setting      by

providing    access     to   both       emergent         and       long-term     civil       and

criminal remedies . . . ."

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

requiring the inclusion of the prosecutor and criminal defense




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

whether   and    what    type      of    visitation      to     accord      the   accused

parent.       While the State submitted a letter to the criminal

judge "strenuously" opposing any modification in bail conditions

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

prosecutor simply reiterates the charges against plaintiff and

their potential sentences.               We do not know whether this letter

was actually seen by the family judge.

      Neither party requested a plenary hearing before the family

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

the family judge whether such a hearing is necessary to decide

this temporary visitation dispute or whether oral argument and

consideration of documentary evidence is sufficient.                          See, Wilke

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

a    non-temporary      visitation            dispute    that      the      Family      Part

ordinarily      conducts     a   plenary           hearing    when    the     facts      are

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

      We therefore remand this matter to the Family Part judge to

determine whether supervised therapeutic visitation with Steve

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

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

Directive.

      Reversed and remanded.




                                              10                                  A-6096-12T3
