August 13, 2012
L.G. AND R.G., DEFENDANTS-APPELLANTS, AND J.N., SR., DEFENDANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Salem County, Docket No. FD-17-204-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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. approximately the same amount of visitation awarded a non-custodial parent when the other parent moves.
This appeal followed.
On appeal, L.G. and R.G. raise the following contentions:
POINT I - THE COURT BELOW ERRED IN APPLYING N.J.S.A. [9:2-4] BY FAILING TO PROVIDE THE MATERNAL GRANDPARENTS "FREQUENT AND CONTINUING CONTACT" WITH THEIR GRANDCHILD FOLLOWING THE DEATH OF BOTH NATURAL PARENTS OF [GINA] AND BY TREATING APPELLANTS AS GRANDPARENTS WITH ONLY LIMITED PARENTING TIME RIGHTS N.J.S.A. 9:2-7.1 AND RESPONDENT AS A SURVIVING NATURAL PARENT.
POINT II - THE COURT BELOW ERRED IN DECIDING UPON A PARENTING TIME PLAN FOR APPELLANTS-DEFENDANTS [L.G., R.G. and J.N.] WITHOUT AN EXPERT TO DETERMINE WHETHER THE PARENTING PLAN ORDERED WOULD FEASIBLY ALLOW [GINA] TO MAINTAIN AN ADEQUATE RELATIONSHIP WITH HER MATERNAL GRANDPARENTS AND PATERNAL GRANDFATHER.
POINT III - IN THE ABSENCE OF A PLENARY HEARING, THE COURT BELOW ERRED IN DECIDING THAT THE RELOCATION OF THE CHILD WITH THE PATERNAL GRANDPARENT WAS DECIDED IN GOOD FAITH [BY] THE PLAINTIFF, NOT INIMICAL TO THE CHILD'S BEST INTEREST, AND THAT APPELLANTS HAVE NOT MET THE REQUIRED STANDARD OF PROOF IN DEMONSTRATING THAT RELOCATION WOULD CAUSE HARM TO [GINA].
POINT IV - EVEN IF THE COURT'S DECISION TO WAIVE A PLENARY HEARING WAS PROPER, THE COURT BELOW ERRED IN DECIDING THAT THE RELOCATION OF THE CHILD WITH THE PATERNAL GRANDPARENT FROM NEW JERSEY TO SOUTH CAROLINA WAS DECIDED IN GOOD FAITH BY THE PLAINTIFF, NOT INIMICAL TO THE CHILD'S BEST INTEREST, AND THAT APPELLANTS HAD NOT MET THE REQUIRED STANDARD OF PROOF IN DEMONSTRATING THAT RELOCATION WOULD CAUSE HARM TO [GINA]
The scope of our review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). These findings may not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citations omitted). As a general rule, we should also defer to the trial judge's credibility determinations because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfindings." N.J. Div. of Youth & Family Servs. v. M.C., 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).
L.G and R.G are not contesting the trial judge's custody decision. The focus of their appeal is on the trial court's determination to allow M.J. to leave the state with Gina and the visitation schedule. Defendants first argue that the judge erred by giving M.J. the legal status of "parent" while treating them as possessing only the legal rights of "grandparents." We disagree, finding that the record does not support this claim.
In determining custody, the judge analyzed the situation under N.J.S.A. 9:2-4 and considered all parties as if they were parents. Although the judge mentioned the grandparent visitation statute, N.J.S.A. 9:2-7.1, he did not apply it either in his custody decision or his determination that plaintiff could move with Gina out of the state. Moreover, in analyzing the removal motion, the judge used the standard established in Baures v. Lewis, 167 N.J. 91, 118 (200l), which governs situations where a custodial parent wishes to remove a child from the state and the non-custodial parent objects. Thus, despite L.G.'s and R.G.'s contention, the record does not reflect that the court treated the parties differently.
Next, L.G. and R.G. contend for the first time on appeal that the judge should have appointed an expert to advise the court on visitation. Plaintiff filed an expert report with her removal motion, and the expert favored relocation. Defendants did not file an expert report, object to plaintiff's report, or ask the trial judge to appoint an expert. We reject as without merit L.G.'s and R.G.'s claim that the judge on his own should have appointed an expert. Appointment of an expert in Family Court is at the discretion of the trial judge. R. 5:3-3(a). We discern no abuse of discretion here.
L.G.'s and R.G.'s principal argument is that the judge erred in granting M.J.'s motion to remove Gina from the state over their opposition. N.J.S.A. 9:2-2 requires a custodial parent to petition the court for approval in order to remove a child from the state without the consent of the other parent. The moving parent must establish a prima facie case showing that there is both good reason for the move and that the move will not be inimical to the child's interests, and must propose a visitation schedule. Bauers, supra, 167 N.J. at 118. The judge determined in the custody hearing that M.J. was functioning as a psychological parent and therefore the Bauers analysis governed her request to remove Gina from the state.*fn3
At the Bauers hearing, the judge, indicating that he was very familiar with the case, did not take further testimony. After careful analysis of the facts, he found that M.J. had established a prima facie case, that she had a good faith reason to move and the move was not antithetical to the child's best interest. Additionally, he found that the defendants did not present credible evidence that disproved plaintiff's claims. Moreover, the judge provided a comprehensive visitation schedule, which the judge pointed out was the equivalent of visitation awarded to a parent.
We are satisfied that the trial judge's removal decision is supported by sufficient credible evidence. The judge found that M.J.'s motivation for moving to South Carolina was that her husband lost his job here, and a better financial situation awaited the family in South Carolina. L.G. and R.G. claim that there is a factual dispute, but do not provide competent evidence to show that M.J.'s certification was false. Their persistent argument that they will not be able to maintain a relationship with Gina is contradicted by the liberal visitation schedule as well as the twice-weekly phone or webcam contact.
Additionally, we are satisfied that no hearing was required here. Plenary hearings are not necessary in every case, only where a prima facie showing has been made that a genuine issue of fact exists bearing on a critical question. Barblock v. Barblock, 383 N.J. Super. 114, 123 (App. Div.) certif. denied, 187 N.J. 81 (2006); Pfeiffer v. Ilson, 318 N.J. Super. 13, 14 (App. Div. 1999). The motion for removal was not made or considered in a vacuum. The parties had been litigating for nearly two years concerning custody of the child, and the motion was made before, and heard after, the extended hearings concerning custody. The judge heard considerable testimony concerning Gina's care, custody, schooling, and maintenance. We discern nothing in the record to suggest a plenary hearing was necessary to establish the facts that were already known to the trial judge through his extensive handling of this case.
We are satisfied that Judge Fineman's findings of fact are fully supported in the record and that his removal and visitation order was not arbitrary or unreasonable.