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D.M v. N.M


July 12, 2011


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.


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 court-ordered psychological evaluation.

At that hearing, with neither of the grandparents or their lawyers present, the trial judge heard the testimony of the therapist who treated both Natalie and the children. This therapist gave her expert opinion that it was in the children's best interests to terminate visitation. The therapist testified that the children were being negatively affected and that they had episodes of regression after returning from visits with Andrew and Donna.*fn3 Thus, the judge amended the FRO on June 15, 2010, to terminate all contact between Andrew and the children. Andrew then filed an application to modify this order by reinstating visitation. The judge consolidated this request with Donna's GVS complaint.

Without any further court-ordered visitation, neither Andrew nor Donna have seen the children since May 26, 2010. According to Natalie, the children have been "happy and healthy" ever since the termination of visitation with their paternal grandparents, their therapist has seen improvements and the children "have not inquired once" about Andrew or Donna. According to Donna, however, the children "are very attached to her." She believes that "continuing and permanent psychological harm to the children" will result if she cannot resume visitation. In particular, Donna worries that the children will develop "attachment disorders later in life" from the sudden termination of her visitation. Donna also notes that she and Andrew are all the children have left of their father's legacy.

Although the grandparents sought permission to conduct an expert evaluation as to whether or not the children would be harmed by the absence of contact with the paternal side of the family, the judge dismissed the action before discovery was conducted or experts retained, stating in her written opinion:

D[onna] and A[ndrew]'s pleadings fall short of the requirement set down in Mizrahi [v. Cannon, 375 N.J. Super. 221 (App. Div. 2005)]. They have not met their burden of showing by a preponderance, that harm will befall their grandchildren if visitation is denied. Their son passed away three years ago, when the children were aged four and one. The children's tender years protected them from the trauma the death of a parent can wreak on an older child.

The . . . children's contact with their grandparents has not been closer than usual, despite the photographs and notes submitted in the pleadings. Neither grandparent ever assumed the role of substitute parent or acted in a parental capacity for a substantial period of time. They each had a typical grandparent-child relationship when the children were very young. A[ndrew]'s contact was restricted by the court for one year and terminated in June. D[onna] admitted her contact with the children had been sporadic over the last year. She has not seen them in the last several months.

The only evidence of potential harm to the children raised by D[onna] in her pleadings is that associated with the loss of parental relatives.

There is no evidence N[atalie] is an unfit parent. She has a fundamental right to raise her children as she wishes. She has the right to refuse to allow any contact between her children and their grandfather, against whom she has an order of protection.

She also has the right to deny visitation to D[onna] or anyone else to whom she objects.

Neither grandparent has made a threshold showing that the children will be harmed by denying visitation with either grandparent.

To require any further hearings or discovery would intrude on N[atalie]'s fundamental right to raise her children as she sees fit.

Daniels v. Daniels, 381 N.J. Super. 286 (App. Div. 2005[)].

On appeal, the grandparents' primary contention is that their visitation applications should not have been dismissed without a plenary hearing.

In reviewing the trial judge's determinations, we are mindful of the deference that appellate courts rightly afford to the decisions of Family Part judges. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988). Under these circumstances, however, where the complaints were dismissed for failure to state a cause of action, we do not defer to the trial judge's decision. Our "review of a trial court's order of dismissal of a complaint pursuant to Rule 4:6-2(e) for failure to state a claim upon which relief may be granted, is plenary . . . ." Smerling v. Harrah's Entm't, Inc., 389 N.J. Super. 181, 186 (App. Div. 2006). We will apply the same test as the motion judge and grant a Rule 4:6-2(e) motion to dismiss "only if, accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief." Ibid. The trial court's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference" on appeal. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Our grandparent visitation statute constitutes 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. 9:2-7.1a.

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) (holding that the trial court properly dismissed the grandmother's visitation complaint without allowing discovery where her complaint did not allege that the children would suffer any harm from the lack of visitation). The grandparent must present "a clear and specific allegation of concrete harm to the children." Id. at 294; see also Rente v. Rente, 390 N.J. Super. 487, 491 (App. Div. 2007) (reversing the trial court's award of unsupervised visitation after a trial, finding that the fact that the grandparents had baby-sat for the children approximately twenty-five times a year while the parent was at work was insufficient to satisfy the required burden of harm); Mizrahi v. Cannon, 375 N.J. Super. 221, 233-34 (App. Div. 2005) (reversing the trial court's decision granting grandparent visitation after a plenary hearing, and 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).

In Moriarty, supra, the Court affirmed the trial court's decision to allow visitation with the maternal grandparents over the father's objection where the children's mother had passed away and the children had an unusually close relationship with the grandparents prior to their mother's death. 177 N.J. at 121. The Court explained that in establishing that visitation is necessary to avoid harm to the children, the grandparents "may rely on the death of a parent . . . ." Id. at 117. The Court indicated that "many of the fifty grandparent visitation statutes specifically recognize the potential for harm when a parent has died or a family breakup has occurred and visitation is denied." Ibid. In affirming the trial court's decision, the Court found that "the death of the mother and the fact that it is extremely important that the children continue a bond with their mother's side of the family" was one of the court's "most critical findings." Id. at 121.

We have also recognized that the death of a parent could create a "special need for continued contact" between the child and the grandparents from the deceased parent's side of the family. Daniels, supra, 381 N.J. Super. at 293. In Daniels, we explained that "harm of the type recognized in Moriarty generally 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 (emphasis added).

We conclude that Junior's death raises the question of whether harm to the grandchildren will come from the deprivation of all contact with the paternal grandparents. We also do not accept as obvious, without some evidentiary basis, the judge's comment that younger children are necessarily shielded from the trauma of the death of a parent. The grandparents should be given the opportunity to obtain expert evidence to assist the court in determining whether or not the children will be harmed if deprived of further contact with the paternal relatives.

At oral argument, the grandmother's lawyer requested that in the event that we remand for a plenary hearing, we specify that the hearing take place before a different judge. We are concerned because, through unfortunate circumstances not of her own doing, the trial judge happened to hear the treating therapist for the mother and children testify, apparently as both an expert and fact witness, out of the presence of either of the grandparents. Particularly in family matters, the parties should be assured of a neutral fact finder. We thus direct that a different judge be assigned to handle this matter.

Reversed and remanded for a plenary hearing.

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