                                     RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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.




                                                        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.
             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.
                                                                      A-3918-15T2
                                      2
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.
                                                                       A-3918-15T2
                                       3
      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


                                                                        A-3918-15T2
                                       4
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 chi ld

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]."




                                                                       A-3918-15T2
                                         5
      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.


                                                                         A-3918-15T2
                                       6
      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 interest-

bearing account. The money in such account is to be used for Eric's post-

secondary 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.


                                                                       A-3918-15T2
                                      7
            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 NON-
            BINDING 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. Matera-

Abouzahr, 361 N.J. Super. 135, 157 (App. Div. 2003) (citing DeVita v.

DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976)).

                                                                      A-3918-15T2
                                      8
      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.




                                                                         A-3918-15T2
                                        9
      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


                                                                       A-3918-15T2
                                       10
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.




                                                                       A-3918-15T2
                                      11
       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.
                                                                       A-3918-15T2
                                       12
