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D.M v. N.M

July 12, 2011

D.M., PLAINTIFF-APPELLANT,
v.
N.M., DEFENDANT-RESPONDENT. N.M., PLAINTIFF-RESPONDENT,
v.
A.M., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket Nos. FD-02-247-11 and FV-02-2365-09.

Per curiam.

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 1, 2011

Before Judges Wefing, Baxter and Koblitz.

These two appeals arise from the trial judge's decision of October 1, 2010, rendered without allowing the grandparents to participate in a hearing, in which the judge denied both paternal grandparents visitation with their two young grandchildren for failure to state a claim. Rule 4:6-2(e). The grandparents, Andrew and Donna,*fn1 requested court-ordered visitation because the children's mother refused to allow them to visit their grandchildren, and their son, the children's father, had passed away. The trial judge consolidated the visitation requests of the grandparents, and we consolidated the appeals. The grandfather's request stemmed from a domestic violence action with the children's mother and the grandmother's from a complaint filed pursuant to the Grandparent Visitation Statute, (GVS), N.J.S.A. 9:2-7.1. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand to allow Andrew to file his request under the GVS and the court to decide both his application and that of his ex-wife, Donna, after a full plenary hearing.

Appellants' late son, Andrew Jr. (Junior), and his wife, Natalie, had two daughters, Ann and Gail. Junior unexpectedly passed away on October 29, 2007, when Ann was four years and Gail one year old. While Junior was alive, the family maintained a cordial relationship with his parents, who have been divorced since 1998. During that time, Donna and Andrew would regularly baby-sit or take the children on outings.

When Ann was a baby, Natalie and Junior lived with Andrew for approximately six months while their house was being built, during which time Andrew would often baby-sit for Ann while Natalie ran errands. In addition, after Gail was born, Andrew would often take care of Gail while Natalie took Ann to school or ran other errands. When Gail was close to a year old, Andrew and Donna took both children out for breakfast or for other activities almost every weekend.

Natalie maintains that she and her husband kept "a level of separation" between the children and his parents because her husband had some "traumatic memories of his dysfunctional family." Natalie asserts that she and her husband rarely allowed the children to go to their grandparents' homes unsupervised. In addition, Natalie certifies that she always had some trouble getting along with Andrew, who she thought to be a "volatile and violent person" and who sometimes engaged in "inappropriate behaviors and [made inappropriate] comments" toward her and treated her "as an object of his sexual desires." Andrew, however, claims that any proclamations of love have been "misinterpreted" by Natalie.

In June 2009, after her husband's death, Natalie secured a final restraining order (FRO) against Andrew for harassment. In accordance with the FRO, supervised visitation between Andrew and the children was then scheduled for three hours every third Wednesday. At Natalie's request, Donna acted as a supervisor. Donna still baby-sat for the girls after Junior's death. While these scheduled visitations were in effect from June 2009 through May 2010, Natalie reported that the girls "most often returned very upset" after a visit and that they "would have difficulty sleeping" for the next few nights.

During that time period, Natalie also began to limit Donna's time with the children to only those scheduled visits because she believed that ever since the FRO, Donna had not supported her in her struggle against Andrew's harassment and thus Donna "increasingly gained [Natalie's] distrust." Natalie objected to "Donna's poor judgment, inconsistent family values, abusive past relationships, and inability to subordinate her own concerns for the interests of the children."

Natalie also stopped inviting Donna to attend the children's school functions, such as Ann's kindergarten graduation, due to the fact that Donna had once started an embarrassing argument with Natalie's father at a recital. Natalie did, however, invite Donna to see the children around Christmas. Donna visited for approximately forty-five minutes on December 22, 2009.

On May 26, 2010, Donna supervised the last of Andrew's scheduled visits. After a trip to the park, Donna parked her car across the street from Natalie's house and got out of the car to remove Gail. Andrew also got out of the car to help Ann out and to greet Natalie's father's girlfriend, who he met in the middle of the street. Although Andrew did not enter Natalie's property, Natalie perceived his approach of the house as a violation of the FRO.*fn2

A few days after this incident, Natalie moved to terminate Andrew's supervised visitation. Andrew claims that he did not receive notice until the day after the June 15, 2010 hearing.

As a result, Andrew failed to appear in court or provide evidence of his compliance with a ...


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