August 9, 2007
R. G., PLAINTIFF-APPELLANT,
H. G., DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FD-13-1737-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 31, 2007
Before Judges Gilroy and Lihotz.
Plaintiff appeals the Family Part order dated September 1, 2005, terminating her grandparent visitation with her two minor grandchildren. We affirm.
The facts are not disputed. Following defendant H.G.'s divorce from F.G. in 1999, the parties shared custody and F.G. was designated the residential custodian of the two children. F.G. then filed to curtail H.G.'s visitation, asserting the children were victims of sexual abuse, and medical and educational neglect while in the home of their mother. H.G. cross-petitioned for custody, alleging that F.G. had sexually abused the children. A twelve-day custody trial commenced in Kings County New York Family Court in April 2002. By order dated February 6, 2003, H.G. was granted sole custody of the children, and F.G.'s visitation rights were terminated based upon the "compelling and overwhelming and consistent [evidence] that the children have been subjected to sexual abuse by [F.G.]." Further, the evidence supported that F.G. had "embarked on a relentless campaign to alienate the children from their mother," has "filed innumerable false allegations against [H.G.]" and "embarked on a campaign of aggressive accusations, whether or not there's a basis of truth or fact in an effort to intimidate and threaten [H.G.]." The trial court's findings and conclusions were affirmed on appeal on March 8, 2004.
Plaintiff R.G., the children's paternal grandmother, resides with her son, F.G. By consent order dated April 5, 2005, H.G. agreed R.G. could spend one hour per month with the children, supervised by a designated party, who was a licensed clinical social worker. The therapeutic supervised visit was extended by court order to up to two hours. F.G. drove R.G. to the designated office for the supervised visit. During a scheduled date, the children saw their father; H.G. declined to allow the visit. After H.G. missed scheduled dates for the children to have a supervised visit with R.G., plaintiff filed for enforcement on May 3, 2006.
F.G. also filed an application seeking visitation. The court mistakenly believed the application was unopposed and granted F.G.'s request. In his moving papers, he did not candidly disclose the New York Family Court's finding that he had sexually abused the children, which resulted in the termination of his visitation rights. H.G. filed for reconsideration of that order and sought to terminate R.G.'s visits, as they were adversely affecting the children. After hearing, Judge Ronald Reisner entered an order dated September 1, 2006 terminating the grandparent visits. He determined that R.G. failed to meet her statutory burden to overcome H.G's decision to terminate the visits, stating:
These attempts by [R.G.] and [F.G.], as predicted by the New York trial judge, are just another attempt in an endless stream of litigation to avoid the consequences of [F.G.'s] harmful and unlawful sexual abuse [that] he committed against his eldest child.
On appeal, plaintiff asserts that the supervised visits should continue because the children and she "love each other and look forward to the visits." She asserts further: "it could be another year or more before my son's application to regain his rights to see his children can be heard, and I don't want to miss another year with my grandchildren."
Although a grandparent's role in a child's life may be very important, "each case in which grandparents are pitted against parents over visitation with grandchildren must stand or fall on its own facts." Moriarty v. Bradt, 177 N.J. 84, 98 (2003) (citing Troxel v. Granville, 530 U.S. 57, 73, 120 S.Ct. 2054, 2064, 147 L.Ed. 2d 49, 61 (2000). Plaintiff's application is presented under the provisions of the Grandparent Visitation Statute, N.J.S.A. 9:2-7.1. Because the statute is "an incursion on a fundamental right (the right to parental autonomy), . . . it is subject to strict scrutiny and must be narrowly tailored to advance a compelling state interest." Moriarty, supra, 177 N.J. at 114. In Moriarty, the Court stated that "interference with parental autonomy will be tolerated only to avoid harm to the health or welfare of a child." Id. at 115. The grandparents bear the burden of establishing by a preponderance of the evidence that visitation is necessary to avoid harm to the child. Id. at 116.
The scope of our review is limited. "The general rule is that findings by the 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. "Trial court findings are ordinarily not disturbed unless 'they are so wholly unsupportable as to result in a denial of justice.'" Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)); Roe v. Roe, 253 N.J. Super. 418, 432 (App. Div. 1992).
Judge Reisner's determination that R.G. failed to "establish that denying visitation would wreak a particular identifiable harm, specific to the child, to justify interference with a parent's fundamental due process right to raise a child free from judicial interference and supervision," Mizrahi v. Cannon, 375 N.J. Super. 221-234 (App. Div. 2005); see also Rente v. Rente, 390 N.J. Super. 487, 493 (App. Div. 2007), was amply supported by the evidence of record. R. 2:11-3(e)(1)(A).
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