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Stephen Levine v. Eric Levine and Vanessa Levine

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 23, 2011

STEPHEN LEVINE, PLAINTIFF-APPELLANT,
v.
ERIC LEVINE AND VANESSA LEVINE, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FD-14-110-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 10, 2011

Before Judges Lisa and Sabatino.

Plaintiff,*fn1 Stephen Levine, appeals the Family Part's order of April 22, 2010, denying his application for relief and dismissing his complaint under the Grandparent Visitation Statute, N.J.S.A. 9:2-7.1, as to his two minor grandchildren, L.L. and A.L. Because we agree with the trial court that plaintiff failed to make an adequate showing under the statute to warrant interference with the decision-making prerogatives of the minors' parents, we affirm.

Plaintiff is the paternal grandfather of L.L., a girl who was born in 2003, and A.L., a boy who was born in 2006. Defendants Eric Levine and Vanessa Levine are the parents of L.L. and A.L. Plaintiff is remarried.

After certain disputes arose between the parties involving the children's religious upbringing and other subjects, defendants discontinued contact between their children and plaintiff in or about April 2009. In June 2009 plaintiff filed an initial complaint in the Family Part, seeking an order compelling visitation with L.L. and A.L. under N.J.S.A. 9:2-7.1, but he voluntarily withdrew that first complaint, and the parties executed a consent order dismissing that complaint in September 2009.

Plaintiff filed the present action in January 2010. In his verified complaint, he alleged, among other things, that he and his wife were "involved in the [grand]children's lives since birth," and that the grandchildren "have always been close to [them] their entire lives, [and have] enjoyed spending time with them. By way of illustration, the complaint alleges that, up until the events that led defendants to stop the contact, plaintiff and his wife regularly spent time every Friday with L.L. and A.L.

In a supporting certification, plaintiff described his and his wife's prior relationship with the grandchildren, including their customary activities on Fridays, their attendance at events such as gymnastic practices and music recitals, and their participation in family gatherings such as birthdays and holidays. Plaintiff elaborated further about these matters in a reply certification. He noted, among other things, that after the rift with defendants arose, certain incidents occurred that appeared to have caused the grandchildren to become upset. In particular, plaintiff described an incident in early 2009 in which they attended L.L.'s dance recital but were not allowed to speak with her at the event. He also recounted an incident at a playground, in which L.L. cried when her mother told her that she had to leave her grandparents there. He also described an incident at a school event, at which A.L. started crying when defendants allegedly refused to allow his grandparents to pick him up.

Plaintiff contended that the cessation of contact with him and his wife has caused L.L. and A.L. psychological harm. In support of that contention, plaintiff submitted to the trial court a May 2009 report from a forensic psychologist. That forensic psychologist interviewed plaintiff and his wife but did not communicate with defendants or with the grandchildren. Based on the limited information supplied to him, the forensic psychologist opined that "if the information obtained from the grandparents is accurate, the children could most certainly be harmed by the removal of such a longstanding, intimate, bonded relationship." The expert added that "in order to reach such a conclusion, it would be necessary to examine the children and, if possible, to interview the[ir] parents."

Plaintiff later identified a different expert psychologist, who is represented to have particular expertise in evaluating circumstances under the Grandparent Visitation Statue. Plaintiff proposed that the court issue an order compelling defendants to have L.L. and A.L. evaluated by that expert psychologist. If her evaluation confirmed plaintiff's perception that the children are being harmed by the loss of contact with him and his wife, plaintiff sought to have the court order that such visitation be resumed through a court order.

Defendants opposed plaintiff's demand for relief under N.J.S.A. 9:2-7.1. They maintained that plaintiff had not satisfied his burden to allege a sufficiently "special relationship" to justify interference with their parental rights under the statute and associated case law. They filed a lengthy certification in opposition to plaintiff's application, contending that plaintiff and his wife have acted in a disruptive and meddlesome fashion, that they have had numerous disagreements with defendants concerning the children, that they have made unannounced appearances at the children's events, and that they have not respected defendants' parental prerogatives.

Defendants asserted that the conflict and tension with plaintiff became so great that they felt it necessary to keep the children away from him and his wife. They stated that "further contact with [plaintiff] would only cause more tension and hostility in our lives, as well as the lives of our children." Defendants also opposed a court-ordered psychological evaluation of the children, asserting that "the children should not be subjected to [such] an unnecessary evaluation[.]"

The applicable provision, N.J.S.A. 9:2-7.1, imposes significant burdens upon a grandparent seeking relief under the statute. It states that:

a. A grandparent or any sibling of a child residing in this State may make application before the Superior Court, in accordance with the Rules of Court, for an order for visitation. It shall be the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best interests of the child.

b. In making a determination on an application filed pursuant to this section, the court shall consider the following factors:

(1) The relationship between the child and the applicant;

(2) The relationship between each of the child's parents or the person with whom the child is residing and the applicant;

(3) The time which has elapsed since the child last had contact with the applicant;

(4) The effect that such visitation will have on the relationship between the child and the child's parents or the person with whom the child is residing;

(5) If the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;

(6) The good faith of the applicant in filing the application;

(7) Any history of physical, emotional or sexual abuse or neglect by the applicant; and

(8) Any other factor relevant to the best interests of the child.

c. With regard to any application made pursuant to this section, it shall be prima facie evidence that visitation is in the child's best interest if the applicant had, in the past, been a full-time caretaker for the child. [N.J.S.A. 9:2-7.1 (emphasis added).]

The statute is a departure from the common law, which afforded no legal right for persons to petition for visitation with their grandchildren. Moriarty v. Bradt, 177 N.J. 84, 95 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). Even with the passage of the statute, the law still recognizes the presumptive force of a parent's "right to rear one's children [which] is so deeply embedded in our history and culture that it has been identified as a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution." Id. at 101. "[I]n every case in which visitation is denied, 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 117; see also N.J.S.A. 9:2-7.1(a).

To meet that burden, the grandparent must demonstrate a "special need for continued contact," one that exceeds that associated with "an ordinary grandparent-child relationship and its unwanted termination." Daniels v. Daniels, 381 N.J. Super. 286, 293 (App. Div. 2005). The grandparent must present "a clear and specific allegation of concrete harm to the children," such as harm that "rests on the existence of an unusually close relationship between the grandparent and the child, or on traumatic circumstances such as a parent's death." Id. at 294; see also Rente v. Rente, 390 N.J. Super. 487, 491 (App. Div. 2007) (finding a showing of such a pre-existing special relationship absent, despite the fact that the grandparents had babysat for the children approximately twenty-five times a year while the parent was at work); Mizrahi v. Cannon, 375 N.J. Super. 221, 233-34 (App. Div. 2005) (holding that conventional harms such as the "loss of potentially happy memories," and the deprivation of a grandparent's "unconditional love, affection and caring" are insufficient to compel visitation under the statute).

Applying these standards to the record before him, the Family Part judge concluded that plaintiff's allegations failed to establish the kind of special pre-existing relationship--beyond an ordinary healthy and loving grandparent-grandchild relationship--that is needed to obtain relief under the statute. As the judge observed in his detailed oral opinion, this case presents "an unfortunate situation in which the relationship between the parents and the applicant here has broken down," deteriorating to a degree that "it is the parents' judgment that [p]laintiff should not have contact with the grandchildren." The judge observed that although the parties were "reasonably close for the period up to May, 2009," and that they were in contact "fairly regularly" up through that time, it would be speculative to consider plaintiff as "a psychological parent or a primary attachment figure."

The judge found the record to bespeak "a typical grandparent relationship" rather than the sort of special relationship that could be sufficient to justify an incursion into the lives of the parents and their children in an "intact family." The judge recognized that the rift that had developed between plaintiff and defendants was "unfortunate," but concluded it was inappropriate to presume that the grandchildren would be traumatized by that rift or that they demonstrably would suffer "significant and material harm."

In the course of his decision, the judge rejected plaintiff's request that the children be required to submit to an evaluation by plaintiff's proposed psychological expert. The judge discerned that it was unnecessary "to subject the children to expert assessments" and "to put them through that whole process" on the basis of what the judge found to be "a fairly straightforward and unfortunate breach of the parental and grandparent relationship." Consequently, the judge dismissed plaintiff's complaint and his requests for relief in their entirety.

Plaintiff now appeals. He argues that the trial judge committed reversible error in granting defendants' motion to dismiss his verified complaint. Plaintiff further argues that, at a minimum, the trial judge should have ordered an expert evaluation of the grandchildren, contending that the use of expert witnesses in cases under N.J.S.A. 9:2-7.1 was endorsed by the Supreme Court in Moriarty, supra, 177 N.J. at 117.

In reviewing the trial court's determinations, we are mindful of the deference that appellate courts rightly afford to the decisions of Family Part judges, particularly, as here, decisions that are fact-specific and contextual. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988). We recognize that, as a general proposition in civil litigation, a trial court should view a plaintiff's complaint with liberality when evaluating a defendant's motion to dismiss that complaint under Rule 4:6-2(e) for failure to state a claim upon which relief may be granted. See Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989). That indulgent approach is tempered, however, in the discrete context of a complaint seeking relief under the Grandparent Visitation Statute, in light of the strong presumptive right of parents to raise their children as they see fit, as well as the "economic and emotional cost of litigation [which] can represent an enormous intrusion into a family's life[.]" Daniels, supra, 381 N.J. Super. at 293.

Applying these pertinent considerations here, we affirm the Family Part's order, substantially for the reasons cogently expressed in Judge Thomas Critchley's bench opinion of April 22, 2010. The judge reasonably found that plaintiff's contentions fell short of demonstrating the kind of special relationship or unusual harm that would distinguish this case from the severance of a conventional healthy and loving grandparent-grandchild relationship. The circumstances, even if they are viewed in a light most favorable to plaintiff, do not rise to the exceptional sort of harm contemplated to obtain relief under the statute and under the case law, including Moriarty, Daniels, Rente, and Mizrahi. The factual assertions in plaintiff's certifications do not portray a pre-existing relationship that is fundamentally different from the typical interaction between a loving grandparent and his grandchildren. Nor does the report of the forensic psychologist, which is tentative in nature and entirely dependent upon plaintiff's own perceptions of the relevant facts, suffice to trigger a right to relief under the statute.

In making these observations, we do not fault plaintiff for his desire to be with the grandchildren he loves, nor with his effort to attempt to repair the severed relationship within his extended family through the aid of the courts. Nevertheless, we do not second-guess the trial court's finding that the record lacks sufficient evidence to set in motion the intrusive measures contemplated under the statute. The burden set forth under the statute is designed, for constitutional reasons, to be a heavy one, and the trial court soundly concluded that plaintiff's contentions were inadequate to meet that burden.

We further concur with the trial court's reticence to compel the grandchildren to submit to psychological evaluations. Although we do not question the professional credentials of plaintiff's proposed expert, there nonetheless is an inherent risk that such a process could alarm or otherwise cause anxiety for the children, no matter how much the expert endeavors to allay such concerns. In addition, the expert's probe itself represents what the trial judge aptly described as an "incursion" into defendants' prerogatives as parents. Given the level of conflict that has erupted between plaintiff, his son, and his daughter-in-law, it is very conceivable that any report rendered by plaintiff's expert would likely be followed by a reciprocal demand to have the children evaluated by an expert retained by defendants. We agree with the trial judge that there is not ample reason here to subject the children to such a litigation-fueled process of repetitive evaluation.

Moreover, we do not read the Court's reference to expert witnesses in Moriarty as an endorsement of the use of experts in every case where a grandparent resorts to filing a complaint under the statute. See also Daniels, supra, 381 N.J. Super. at 297. "Absent special circumstances, parents who decide to limit or even preclude grandparent visitation should not be faced with court-ordered psychological examinations and other intrusive measures at the grandparents' behest." Ibid. The deployment of experts in discovery may be judiciously regulated by the trial court, particularly in the Family Part where the court has an overarching responsibility to safeguard the best interests of children. See also R. 4:10-3 (authorizing protective orders to shield either parties or persons from discovery measures that would impose undue burdens).

Affirmed.


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