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Zack v. Fiebert

Decided: August 18, 1989.


On appeal from the Superior Court, Chancery Division, Family Part, Passaic County.

Long, Muir and Keefe. The opinion of the Court was delivered by Long, J.A.D.


Plaintiffs Joseph and Ann Zack are the maternal grandparents of the minor children Kenneth and Jennifer Fiebert. Plaintiffs' daughter, Mary Ann, the natural mother of the children, died in March 1987. Mary Ann's first marriage, which resulted in the birth of the children, ended in divorce in 1980. In February of 1982, Mary Ann married the defendant Jack Fiebert who adopted the two children in December of that year. Mary Ann developed leukemia in March of 1985. During her two year illness, the children spent much of their time at their grandparents' home. After Mary Ann's death, there was a traumatic confrontation between the Zacks and Feibert at her funeral resulting in a substantial change in their relationship and in the Zacks' visitation with their two grandchildren. In early 1988, Fiebert married a woman he met at a support group for widows and widowers. Fiebert and the two children presently live with his new wife and her three children.

This lawsuit began in the summer of 1987 when the Zacks filed a complaint seeking visitation and custody of their two grandchildren and a diagnostic investigation of Fiebert and the children. Among the allegations of the complaint were the Zacks' claims that the defendant has not adequately provided for the care, custody, education and maintenance of the children. Fiebert answered seeking dismissal of all three counts. The Zacks then moved for specific visitation, telephone contact and investigations to be performed by the Passaic County Diagnostic Center and the Passaic County Probation Department. By consent order dated October 27, 1987, the parties agreed to a visitation schedule. Later orders modified the visitation schedule and directed reports by DYFS, the Passaic

County Probation Department and the Passaic County Diagnostic Center.

The Probation Department report, prepared in May of 1988, recommended that the children be placed in the temporary custody of the Zacks until Fiebert received and benefitted from counseling. The Passaic County Diagnostic Center prepared a report on Feibert in May of 1988, which recommended that custody remain with him on condition that the Zacks enjoy a more relaxed visitation schedule, the parties participate in family therapy, the children and Fiebert receive individual counseling and Fiebert's new wife undergo an evaluation. The Passaic County Diagnostic Center positively evaluated Fiebert's new wife in the summer of 1988 and concluded that Fiebert "could offer an adequate parental environment for Jennifer and Kenny through some modifications in his temperament and attitude." In recommending that custody remain with Fiebert, the report stressed the need that the parties participate in therapy and that visitation become more flexible. The final conclusion was that because of the age of the Zacks, they were not prepared to provide a home environment suitable for raising adolescents.

In July of 1988, Fiebert filed a motion for partial summary judgment to dismiss the custody count of the Zacks' complaint. The trial judge rendered an oral decision granting Fiebert's motion:

The question is not whether it would be in the best interest for these children to remain with Jack [Fiebert] or to go with the grandparents, but rather the question is whether or not a hearing is required to determine that. . . . I have concluded that there is no commonlaw right that gives the grandparents in this situation standing in court to allege that a best interest hearing is required in order to determine the question of custody.

In no case that I can find is there any basis for an allegation of someone other than the parent to seek to take from another parent or from a parent children, when those children are not actually in custody or that are actually in custody of that parent without some kind of an allegation that there is some kind of unfitness on the part of the parent. And I do believe the reports that I've alluded to, the Probation Report, Diagnostic Reports of August 23, 1988 and

May 18, 1988 put to rest the fact that this defendant is in fact an unfit parent, because he is not at least according to our reports. Secondly, I don't believe the statute confers that right. The statute confers a right to visitation on the part of the parent -- grandparents which they before did not have. At least this statute was an effort by the Legislature to speak on this point and they spoke very clearly. They gave to grandparents the right of visitation. They chose not to give to grandparents the right to sue for custody under these circumstances. That does not mean that there are not circumstances under which grandparents may make this allegation, I suppose, in the case of an unfit father or whatever they could. But there's not that evidence in this case. I'm not saying that Jack Fiebert would be the most suitable parent for these children, although from the reports it seems that way. But I really haven't taken testimony on that question. Nor do I say that Joseph and Ann Zack would be unfit to have custody of these grandchildren. It's obvious to me that they have a great deal of affection for these grandchildren. And I think we should in this proceeding, if we can do anything, we can try to continue that relationship between grandparent and grandchild. That's a very important relationship and Jack as their father should realize that, that these children need to have that kind of relationship. But as far as I am concerned, I agree with the position adopted by Jack Fiebert through his attorney that no best interest hearing is required under these circumstances, unless there is an allegation of unfitness and I don't believe there is any unfitness in the defendant, Jack Fiebert.

Boiled down to its essentials, the trial judge's ruling had two prongs. First, he declared that the standard he would apply to the Zacks' claim for custody of their grandchildren as against Fiebert was one of unfitness. Second, he determined that the Zacks' allegations against Fiebert (even if believed) did not ...

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