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M.J v. L.G. and R.G.

August 13, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Salem County, Docket No. FD-17-204-09.

Per curiam.



Submitted January 31, 2012

Before Judges Payne, Reisner and Hayden.

Defendants L.G. and R.G. appeal from an October 22, 2010 Family Part order allowing plaintiff M.J. to relocate with the parties' two-year-old granddaughter Gina.*fn1 Having considered the arguments of the parties in light of the record and the applicable legal principles, we affirm.

By way of background, the record reveals the following pertinent facts. On September 12, 2008, seventeen-year-old R.G., daughter of L.G. and R.G., and her eighteen-year-old boyfriend, J.N., Jr., son of plaintiff M.J. and defendant J.N., Sr.,*fn2 were killed in a car crash along with J.N., Jr's brother and another young man. The teenagers' then two-month-old daughter Gina was in the car but survived with minor injuries. She is the subject of this litigation.

Because Gina was an orphan without a designated guardian, the New Jersey Division of Youth and Family Services (DYFS) became involved immediately. After background checks revealed that L.G. and R.G. had criminal histories as well as histories with DYFS, and the maternal grandfather J.N. had a criminal history, DYFS placed the child with M.J. and her husband, who both had clear records. Both the maternal grandparents and M.J. applied to the Family Court for an order for custody, and J.N. requested visitation. On October 9, 2008, the judge awarded M.J. sole custody of the child.

In November 2008, L.G. and R.G. filed another motion to obtain custody of Gina, and plaintiff cross-moved to restrict L.G.'s and R.G.'s visitation. At the next hearing on December 12, 2008, the judge continued the order for plaintiff to have sole custody and provided the maternal grandparents and J.N. with a visitation schedule. Unfortunately, the parties were unable to work together and over the following months filed several motions involving custody and visitation. The judge ordered the parties to attend counseling to enable them to work together but L.G. and R.G. refused. Eventually, Judge Fineman scheduled a plenary hearing on custody and visitation issues, which took place on several days between April and September, 2010.

Prior to the custody hearing, plaintiff filed a motion seeking to remove the child from New Jersey to South Carolina and to modify the visitation schedule accordingly. In her moving papers, plaintiff explained that her husband's real estate appraisal business had closed due to the housing market downturn. To address their financial crisis, they had found a very promising business opportunity in South Carolina, where they had family support, the cost of living was considerably less, and the weather was mild. Plaintiff included a liberal visitation proposal for the defendants so Gina could remain in their lives. L.G. and R.G. filed an opposition because they wanted the child to remain in this state and questioned whether it was truly necessary for M.J. to leave New Jersey.

On September 13, 2010, Judge Fineman issued an oral decision on the custody issue, which provided for plaintiff to retain sole custody of Gina. Although the judge acknowledged that the parties were grandparents, not parents, he decided to apply the factors from N.J.S.A. 9:2-4, which addresses parental custody in separation and divorce, in the absence of other standards. He found that Gina had been with M.J. for over two years and had bonded with her; thus, he determined that M.J. had acquired the status of a psychological parent. The judge reasoned that the presumption that a parent should have custody rather than a non-parent provided support for awarding M.J., the psychological parent, custody of Gina. The judge recognized that L.G. and R.G. probably could meet the child's needs but determined that Gina's bond with her paternal grandmother was very strong, and M.J. had more financial stability and could provide a number of benefits to Gina that L.G. and R.G. could not. He also found significant that Gina was living with her four-year-old uncles and her fourteen-year-old aunt as well as M.J.'s husband, giving her the benefit of a large family.

On September 27, 2010, two weeks after rendering his custody decision, the judge heard argument on plaintiff's motion for permission to remove the child from the state, which had been pending since March. After hearing oral argument and considering the parties' visitation proposals, Judge Fineman ruled that plaintiff could remove the child to South Carolina as she had presented evidence that the move was in good faith and not against the best interest of the child. However, to ensure continued contact with the non-custodial grandparents, he provided for extensive visitation during the holidays and the summer and placed responsibility for transportation to New Jersey on M.J. He also provided that the non-custodial grandparents could visit Gina in alternate months for one weekend in South Carolina at their own expense. Moreover, he afforded L.G. and R.G. at least twice-weekly phone and webcam contact.

Judge Fineman specifically rejected L.G.'s and R.G.'s visitation plan, which included having Gina spend one week per month in New Jersey. The judge found that Gina needed stability in her life and constantly flying from state to state and staying with different grandparents would not allow such stability. The judge observed that his plan gave the maternal grandparents and J.N. ...

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