On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FD-13-0395-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, J. N. Harris and Koblitz.
Grandmother S.B.R. (Sara)*fn1 appeals from the order of February 17, 2011 dismissing, without a hearing, her complaint seeking visitation with her grandson, Steve. She also appeals from the order of June 17, 2011 assessing counsel fees of $89,716.27 against her and her husband, R.R.F. (Rafael), who passed away March 21, 2011. After reviewing the record in light of the contentions advanced on appeal, we reverse both orders and remand for a plenary hearing.
In May 2000, Steve was born in New Jersey to D.G.G. (Dan), an American citizen, and his now-deceased wife, B.B.G. (Belinda), a Brazilian citizen. The Brazilian maternal grandparents purchased a condominium near the marital home in New Jersey for their use during their frequent visits. Four years later, Belinda took Steve to Brazil for a visit and refused to return him to the United States. Lawsuits were brought by all parties in New Jersey and Brazil.*fn2
In September 2004, Dan filed an application with the United States Department of State for transmission to the Brazilian Central Authority, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, seeking Steve's immediate return. Meanwhile, Belinda was granted a divorce in Brazil and, in 2007, she married a Brazilian lawyer, J.P.L. (Juan). She died after giving birth to their first child, Cara, in 2008. After Belinda's death, Juan lived in the home of Sara and Rafael in Brazil with his newborn daughter and step-son Steve.
Juan refused to return Steve to Dan, and obtained a custody order in his favor from the Brazilian courts. Dan traveled to Brazil, but was unable to visit with Steve. In February 2009, Dan went to Brazil with a concerned United States Congressman and saw Steve for the first time since June 2004. Judge Rafael De Souza Pereira Pinto, a Federal Alternate Judge for the Regional Federal Court of Brazil, found that there was an "urgent need" to return Steve to the United States after three Brazilian court-appointed expert psychologists, who interviewed Steve, Dan, Juan, and the grandparents, had "clearly and convincingly" demonstrated in their April 2009 report that Steve had suffered psychological damage and had been "subjected to a pernicious process of parental alienation." After appeals and further involvement by government officials, and pursuant to a decision by Brazil's Supreme Federal Court, Dan regained legal and physical custody of Steve in December 2009 when he was nine years old, five years after Steve was brought to Brazil by his mother.
After returning to New Jersey, Steve spoke to his grandparents on the phone and exchanged email several times. In January 2010, through their counsel, the grandparents: (1) agreed to consult with Steve's therapist, Dr. Charles Diament, Ph.D.; (2) agreed "not to disparage [Dan] to [Steve] in any way;" and (3) agreed "not to discuss any litigation or mention [Steve] returning to Brazil." According to Dan, however, the grandparents and other family members tried to set up secret email accounts with Steve, sent him cell phones without telling Dan, and told Steve they were fighting to get him back. The grandparents denied those allegations.
My position has been consistent. I believe that [Steve's] maternal grandparents should be permitted to visit with [Steve] only and to the extent that I, as [Steve's] only living parent, determine, in consultation with [Steve's] therapist, that he will benefit from such contact. I told them, both in person and to their counsel, that the indicia that I require to know that they have accepted the current situation and will support the father/son relationship is that they:
a) Discontinue their litigation in Brazil which still seeks [Steve's] return;
b) Agree to attend upon Dr. Charles Diament, [Steve's] therapist, in supporting [Steve's] acclimating to the United States, and to keep these communications entirely private;
c) Agree to protecting [Steve] by refusing to disclose information about him and this process to the media.
They have refused to abide by these most reasonable conditions. [Emphasis in the original.]
In February 2010, through their counsel, the grandparents agreed to contact Dr. Diament, but they refused to consent to "Dr. Diament's unilateral determination as to how and to what extent their contact with [Steve] would be permitted to expand," and they refused to "withdraw all legal proceedings that may be pending in Brazil."
On March 31, 2010, the grandparents filed a complaint seeking to enforce unlimited visitation rights under N.J.S.A. 9:2-7.1 and an order to show cause for an "emergent application" seeking "immediate visitation" with Steve, that is, at least "one visit with [Steve] before they depart" to Brazil. In their complaint, they alleged that Dan was denying them all visitation, and that:
12. During the time [Steve] was residing in Brazil, [the grandparents] did not interfere with [Dan]'s ability to visit or communicate with [Steve]. To the contrary, [they] encouraged such contact and even offered to pay [Dan]'s expenses to come to Brazil to see [Steve].
13. Since [Steve's] return to New Jersey on December 24, 009, [the grandparents] have made ongoing and repeated attempts to have contact with [Steve]. With the exception of a few telephone calls, said requests have been denied by [Dan]. [They] have not ...