On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FD-12-1802-08C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Gilroy.
Plaintiffs are the parents of defendant's deceased wife, Ramona, and they are his daughter's maternal grandparents. He appeals from an order of October 9, 2008 granting plaintiffs visitation with his daughter in accordance with a schedule to be proposed by him. After defendant filed the notice of appeal, the trial judge denied his application for a stay, and the parties subsequently entered a consent order for visitation, without prejudice to this appeal. Their agreement, stated generally, provides for visitation one weekend each month from 9:00 a.m. on Saturday until 6:00 p.m. on Sunday.
Defendant and Ramona married in September 2003, and their only child was born in August 2005. Within three weeks of the birth, Ramona had a seizure caused by a previously undiagnosed, cancerous brain tumor. After undergoing surgery and a course of chemotherapy, Ramona died in March 2008.
The relationship between plaintiffs and defendant was strained from the outset. They first met at a Thanksgiving dinner in 2002 hosted by plaintiffs. According to defendant, Ramona delayed introducing him to her parents because they were not pleased with her decision to live with defendant or the fact that he and Ramona were not of the same race. Defendant did not feel welcome in their home, and because Ramona told him that he would not like the food her mother would serve, he had a soda while the family ate.
Defendant went with Ramona to plaintiffs' home three times before he and Ramona married, and he could recall only one conversation with Ramona's father. Ramona's father's account of his relationship with defendant was not materially different than defendant's description; in his view the two men never developed a relationship. Each of the them blamed the tension on the other. By May of 2003, Ramona and defendant, who were attending counseling together, decided not to visit with her parents.
Nonetheless, Ramona's mother attended the wedding in September 2003, and she gave defendant and Ramona a wedding gift. Ramona's father, who was not invited, did not attend. Although Ramona visited her mother on occasion after the wedding, defendant had no contact with her parents. In January 2005, Ramona sent a birthday card to her father and, through that card, let her father know that she was expecting a child.
Ramona's mother came to the hospital after her granddaughter was born in August 2005. When Ramona became ill, her mother cared for the baby and her daughter while defendant was at work, and she did things such as laundry and cooking to maintain the household. Defendant acknowledged that Ramona's mother was very helpful, but he explained that he came to feel like a stranger in his home because his mother-in-law was assuming control. Whether as a consequence of defendant's discomfort or Ramona's belief that he was seeing someone else, defendant and Ramona quarreled. In June 2006 they separated, and from that point forward Ramona's mother or another of her relatives stayed with her.
After defendant left the marital residence, he and Ramona shared custody equally on alternating weeks. While the child was with Ramona, her mother assumed responsibility for the child's care when Ramona could not. She bathed, fed and played with her granddaughter.
When Ramona's condition worsened, she and the child went to her mother's home. Ramona and defendant continued to alternate custody on a weekly basis until Ramona's death in March 2008. On the day of Ramona's death, defendant and his parents picked up the child from Ramona's parents' home.
After Ramona's funeral, her mother and defendant attempted to arrange for the child to see her grandmother and visiting relatives, but a misunderstanding about the scheduled day led to a disagreement that they were unable to resolve, causing additional hard feelings between defendant and Ramona's mother. Defendant told his mother-in-law that she would have to take him to court. By the time of the trial in September 2008, defendant acknowledged that he did not want Ramona's parents to see their granddaughter.
The trial judge found that Ramona's mother was the child's primary caregiver during her mother's parenting time after defendant left the marital residence, a period that commenced in June 2006 and ended in March 2008. Based on the role the grandmother had played in the child's life during her mother's illness and the death of the child's mother, the judge concluded that severance of the child's ties with her ...