On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County.
Michels, Petrella and Baime. The opinion of the court was delivered by Michels, P.J.A.D.
[200 NJSuper Page 172] Defendants C. and D.J., the maternal grandparents of D.T., an infant, appeal from an order of the Chancery Division, Family Part, which awarded custody of D.T. to her natural father, plaintiff A.T. To afford D.T. a smooth transition to her new home and residence, the trial court ordered that plaintiff
not assume custody of D.T. until July 1, 1985, and established a visitation schedule for plaintiff with D.T. pending transfer of custody. The trial court appointed Rosemarie Bello Truland, Esq., guardian ad litem to monitor the progress of D.T.'s visitation with plaintiff pending the transfer and to propose a plan of visitation for defendants which would commence when plaintiff assumed custody.
The facts are fully recounted in the thorough letter opinion of Judge Nitto dated July 12, 1984, and need not be repeated here. It is sufficient to emphasize that plaintiff's daughter, D.T., was born to him and his wife, P., on November 21, 1978. During the next five years the family lived in Belleville, New Jersey, and then in Wallington, New Jersey. They had frequent contact with defendants, who were the parents of P. and who resided in Paterson, New Jersey. Plaintiff testified that from the time of his daughter's birth until the separation from his wife, he, his wife, and daughter saw the defendants almost every weekend. Sometime between February and April, 1983, plaintiff filed for divorce. The couple separated in August, 1983, although the circumstances of that separation were disputed in the record. Following the separation, P. took D.T. and moved in with her parents in Paterson. Plaintiff, after approximately a week, left the family apartment in Wallington and returned to his parent's home in Pennsylvania, where he now resides.
On January 15, 1984, P. died as a result of injuries sustained in an automobile accident. P.'s brother notified plaintiff, who left Pennsylvania to attend his wife's funeral. On the same day as his wife's burial plaintiff approached D.T.'s grandmother, D.J., and "asked if . . . [he] could take [D.T.]." According to plaintiff, D.J. replied that "she would rather . . . [he] didn't." Defendants, however, did not have legal custody of D.T. pursuant to any court order. They simply stood in loco parentis to the child by virtue of the fact that the child continued to reside with them and they voluntarily undertook the responsibility to care for her.
Plaintiff returned to Pennsylvania and retained an attorney who, on January 27, 1984, filed a complaint and obtained an order to show cause to obtain custody of D.T. Plaintiff also obtained regular visiting rights with D.T. on Saturdays and Sundays between 10 a.m. and 4 p.m. pursuant to an order pendente lite entered on March 1, 1984. Defendants filed an answer resisting plaintiff's attempt to obtain custody of D.T., and although they did not file a counterclaim, sought an order continuing D.T.'s custody with them on the grounds that such an order would satisfy D.T.'s best interests and that plaintiff was an unfit parent. The trial court, after hearing testimony and considering psychological reports offered by experts on behalf of both parties and by court appointed experts, awarded custody of D.T. to plaintiff, her natural father. The trial court, applying a "parental fitness standard," held that the maternal grandparents (herein defendants) had "failed to meet their burden under N.J.S.A. 9:2-9 for establishing by clear and convincing evidence why plaintiff should be deprived of the custody of his daughter."*fn1 This appeal followed.
We are satisfied from our study of the record and the arguments presented that the trial court properly awarded
custody of D.T. to her natural father, the plaintiff. Contrary to defendants' claim, there is substantial credible evidence on the record as a whole to reasonably warrant the trial court's findings and conclusions that plaintiff was a fit custodial parent and that the defendants had failed to meet their burden of establishing by clear and convincing evidence that plaintiff should be deprived of custody of his natural daughter. We discern no good reason or legal justification for disturbing them. Leimgruber v. Claridge Associates, Ltd., 73 N.J. 450, 455-456 (1977); Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-484 (1974); State v. Johnson, 42 N.J. 146, 163 (1964).
Moreover, even assuming as defendants contend that the applicable test is whether the best interests of the child would be served by a custody award to a third person and that neither a finding of parental unfitness nor abandonment under N.J.S.A. 9:2-9 is a prerequisite to entry of such an order, see Hoy v. Willis, 165 N.J. Super. 265, 272 (App.Div.1978); cf. E.T. v. L.P., 185 N.J. Super. 77, 81 (App.Div.1982),*fn2 nonetheless, the defendant in this case did not overcome the strong presumption in favor of the natural parent's right to custody of his or her own child.*fn3 The right of natural parents to the custody of their [200 NJSuper Page 176] minor children is one of the basic rights incident to parenthood. "This right, which recognizes the natural bond of blood and affection between parent and child, is unlike a property right. It has been described as akin to a trust reposed in the parent by the State as parens patriae, for the welfare of the infant." In re Mrs. M., 74 N.J. Super. 178, 183-184 (App.Div.1962). Indeed, the right of natural parents to the custody, care and nurturing of their children has risen to the stature of a fundamental right and deserves special protection. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599 (1982); Stanley v. Illinois, 405 U.S. 645, 651-652, 92 S. Ct. 1208, 1212-1213, 31 L. Ed. 2d 551 (1972) (and cases cited); In re Guardianship of Dotson, 72 N.J. 112, 122 (1976) (Pashman, J., concurring); State v. Perricone, 37 N.J. 463, 472 (1962), cert. den. 371 U.S. 890, 83 S. Ct. 189, 9 L. Ed. 2d 124 (1962). See In re N., 96 N.J. Super. 415, 424-425 n. 5 (App.Div.1967). Since the right of parents to the custody of their minor children is both a natural and legal right, the law should not disturb the parent/child relationship except for the strongest reasons and only ...