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C.D., A.P., and D.D v. N.D.M. and A.L

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 8, 2013

C.D., A.P., AND D.D., PLAINTIFFS-APPELLANTS,
v.
N.D.M. AND A.L., DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FD-14-157-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 27, 2012

Before Judges Simonelli, Koblitz, and Accurso.

This matter involves a child custody dispute between the biological mother, defendant N.D.M. (Mother), and her family members, plaintiffs C.D. (Aunt), A.P. (Grandmother) and D.D. (Grandfather). Plaintiffs appeal from May 25, August 1 and November 29, 2011 orders. The August order, which was issued without a testimonial hearing, returned the child, Alice,*fn1 to Mother, from whom she had been "temporarily" removed almost two years before. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Mother and defendant A.L. (Father) were married in 2003, the same year Alice was born. They divorced three years later. Mother and Alice moved in with Grandmother from September 2004 until January 2007. They then lived with Aunt and Grandfather for about two-and-one-half years until they began living with E.M. (Stepfather). In 2009, the Division of Youth and Family Services*fn2 investigated Mother three times and did not substantiate any allegations of abuse or neglect.

In February 2010, Mother married Stepfather and they now have a child together. Mother also has a stepson, Gary, who is Stepfather's child from a previous relationship. Father has also remarried. He visited Alice regularly while she was in her relatives' custody, but did not seek primary physical custody of her.

On September 1, 2009, one month after Mother moved in with Stepfather, plaintiffs filed a verified complaint seeking an order to show cause with temporary restraints seeking the immediate return of Alice and providing plaintiffs with temporary residential custody pendente lite. In their complaint, plaintiffs also sought: Kinship Legal Guardianship*fn3

(KLG) and child support from the Mother, but not the Father. Plaintiffs filed certifications alleging that Mother physically and verbally abused Alice and did not protect Alice from Gary's assaults. Plaintiffs also alleged that Alice engaged in self-destructive behavior and threatened suicide if she was required to live with Mother and Stepfather full-time. The same day the complaint was filed, based on Father's consent and plaintiffs' certifications, the judge returned Alice to the legal and residential custody of plaintiffs and awarded temporary custody to plaintiffs pending a KLG application. No proceedings were held on the record, contrary to the requirements of Rule 4:52-1(a) ("The proceedings shall be recorded verbatim provided that the application is made at a time and place where a reporter or sound recording device is available.").

On the return date of the order to show cause, Mother appeared without counsel.*fn4 Based on written certifications, oral argument and direct examination by the court of Mother, the judge extended plaintiffs' temporary custody and directed that a best interest evaluation be completed within ninety days.*fn5 The order also called for supervised visitation and telephone contact with Mother. Additionally, "[Mother] agree[d] to attend a parenting class, anger management class and obtain a psychiatric evaluation." Child support from Father to Mother was suspended by separate order the same day. No support from either parent to plaintiffs was ordered.

Upon plaintiffs' suggestion, Dr. Mathias R. Hagovsky, Ph.D., a private custody expert, was jointly retained by plaintiffs and defendant to prepare a best interest evaluation. However, he did not complete this report until July 24, 2010, almost a year after the order directing that the report be completed within ninety days. The record does not reveal the cause of the delay. Dr. Hagovsky opined that Mother was a fit parent and recommended a reunification plan for Alice and her mother. Pursuant to Dr. Hagovsky's report, on January 3, 2011, the judge ordered that Mother obtain residential custody of her child by April 30, 2011. The judge wrote, "[t]he Court finds there has been delay in implementing the spirit of Dr. Hagovsky's recommendations. The parties should proceed with all deliberate speed to achieve the reunification . . . ."

In the month following the order, Mother filed a motion seeking the immediate physical custody of her daughter as well as other relief. On April 7, 2011, plaintiffs filed a cross-motion seeking to: change the reunification therapist, compel Mother to follow Dr. Hagovsky's recommendations, require the parents*fn6 to pay child support, prohibit Mother from disparaging Aunt in front of Alice, and require Mother to pay plaintiffs' legal fees.

On April 21, 2011, the return date on the motion and cross-motion, the discussion in court centered on the approaching April 30 reunification date, the reunification therapist, and plaintiffs' desire for the judge to communicate with Dr. Hagovsky regarding Mother's progress. The judge highlighted his frustration with the delay in the proceedings, stating, "sometimes you have to take a big picture approach and this is taking too long." He also commented on the constitutional issues, and stated that "when one party has custody of the child, delay works in their favor." Reunification did not occur by April 30, 2011.

On May 25, 2011, an order was entered to reunite Mother with her daughter "as soon as possible consistent with Dr. Hagovsky's letter dated May 4, 2011." Dr. Hagovsky's letter indicated that following additional visitations and overnight stays with Mother, Alice should be returned to her mother's custody by early August. On June 13, 2011, Dr. Hagovsky sent another letter indicating that in a recent telephone meeting, he had suggested a revised reunification plan.

On July 8, 2011, plaintiffs filed a motion to suspend Mother's overnight parenting, appoint a guardian ad litem (GAL), schedule a plenary hearing, and compel Mother to pay Aunt's counsel fees. Mother filed a cross-motion seeking, among other remedies, sole legal and physical custody of Alice as well as reimbursement of Mother's therapy and attorney fees.

When the parties appeared before the judge for oral argument on August 1, 2011, the judge said,

If I could go back in time, I would think better of the removal of the child because I can't, despite repeated orders[,] get the child returned to the mother. I have tried to make it clear why that is appropriate and necessary, but it has fallen[,] in my view[,] on deaf ears.

The judge entered an order on August 1 returning Alice to her mother on August 15, 2011.*fn7 In the order, the judge directed that Mother and Alice continue to participate in joint therapy until that reunification date.

After Alice was returned to her mother, plaintiffs filed an order to show cause seeking to: incorporate and enforce Dr. Hagovsky's May 4, 2011 recommendations; establish a visitation schedule with Aunt; compel Mother to allow and encourage Alice to call plaintiffs; compel Mother to resume Alice's therapy with her previous therapists; compel Mother to pay outstanding therapy fees owed to Dr. Hagovsky; and authorize an updated psychological evaluation and report by Dr. Hagovsky. On November 29, 2011, the judge entered an order denying all of plaintiffs' requests and granting counsel fees to Mother in the amount of $17,100.

On appeal, plaintiffs maintain that Aunt is a psychological parent of Alice. They argue that the judge erred by returning custody of Alice to Mother without: (1) obtaining an updated report from Dr. Hagovsky; (2) conducting a best interest analysis; (3) appointing a GAL; or (4) conducting a plenary hearing. Although they make clear that this litigation is not driven by finances, plaintiffs also appeal from the denial of child support for the almost two years Alice was in their "temporary" custody. They appeal from the award of counsel fees as well.

I

We will first discuss the non-financial aspects of the appeal. Our standard of review on matters of both custody and parenting time is deferential. Regarding child custody matters, "the conclusions of a trial judge are entitled to great weight and will not be lightly disturbed on appeal." DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976) (citing Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div.), certif. denied, 28 N.J. 147 (1958)).

We owe a special deference to the Family Part's particularized jurisdiction over domestic relations. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Thus, we will not undo a court's deliberative and comprehensive approach unless the court's findings were "so wide of the mark" that a mistake must have been made. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).

Plaintiffs argue that they have standing to seek custody of Alice; or alternatively, parenting time with Alice because Aunt is her psychological parent. They assert that Alice will be harmed if she is unable to have contact with them. We do not agree that Aunt is Alice's psychological parent.

In V.C. v. M.J.B., 163 N.J. 200, 205, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000), the Court determined what legal standard should be applied to a third-party who claims to be a psychological parent and seeks joint custody and visitation. The Court determined that the best interest standard was appropriate "to all persons who have willingly, and with the approval of the legal parent, undertaken the duties of a parent to a child not related by blood or adoption." Id. at 205-06 (emphasis added). Here, while Alice and her mother lived with plaintiffs for more than two years prior to leaving, Mother did not explicitly give her sister "the duties of a parent" as distinguished from the assistance of an aunt.

In Watkins v. Nelson, 163 N.J. 235, 253 (2000), the Court established a two-prong standard for analyzing custody disputes between third-parties and a parent. First, if the parental termination standard is not met, "a finding of 'exceptional circumstances'" must be satisfied before a third-party is granted custody. Id. at 253-54. Determining that a third-party is a psychological parent is one such exceptional circumstance. Id. at 254 (citations omitted). In order to establish that a third-party is a child's psychological parent, four elements must be demonstrated:

(1) that the biological or adoptive parent consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that the petitioner assumed the obligations of parenthood by taking significant responsibility for the child's care, education and development, including contributing towards the child's support, without expectation of financial compensation [a petitioner's contribution to a child's support need not be monetary]; and (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

[V.C., supra, 163 N.J. at 223 (alteration in original) (citation omitted).]

If such a finding of psychological parenthood is made "the court [must] decide whether awarding custody to the third party would promote the best interests of the child." See Watkins, supra, 163 N.J. at 254.

During the time that Alice lived with plaintiffs she undoubtedly strengthened her bond with these family members. However, Mother did not consent to plaintiffs stepping into the role of a psychological parent. An aunt or grandparent often assists a parent to care for a child, both financially and in many other ways.*fn8

Extended family living in one household is common. Parents do not cede their rights as a parent by taking advantage of the assistance of relatives. Mother was never determined to be an unfit parent or to have abused or neglected Alice in any way.*fn9

Although plaintiffs indicated when they began the litigation that they were seeking KLG, in fact, they did not pursue that cause of action. To obtain KLG over the objection of a parent requires a stringent test including a lack of parental fitness. N.J.S.A. 3B:12A-6(d).

Plaintiffs argue that Alice should not have been returned to Mother without a plenary hearing. Certainly a change of physical custody between parents, or between a parent and a psychological parent, ordinarily requires a plenary hearing. See R. 5:8-6; Faucett v. Vasquez, 411 N.J. Super. 108, 119 (App. Div. 2009) (citing Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005)), certif. denied, 203 N.J. 435 (2010); N.J. Div. of Youth & Family Servs. v. S.S., 405 N.J. Super. 1, 3 (App. Div. 2008). Nevertheless, Alice was "temporarily" removed from her mother to her aunt's physical custody without a plenary hearing and the removal lasted far longer than the judge anticipated. This extended placement, however, does not convert Aunt to a psychological parent. Generally, if as a result of an investigation by the child protective services agency, there is a finding of abuse or neglect and a child is therefore removed and placed with a relative in foster care, that relative does not become a psychological parent, nor is a plenary hearing required to return the child home to the parent. See N.J.S.A. 9:6-8.54.

Absent a custody dispute between parents, whether they are biological, legal, or psychological parents, the best interests of the child are not relevant. See N.J.S.A. 9:2-4. The courts have no authority to determine in which family the child will do better, nor do plaintiffs argue that such authority does or should exist. See N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 165-66 (2010) (citing In re Guardianship of J.C., 129 N.J. 1, 7-10 (1992)). We are satisfied that the judge correctly determined that Mother's constitutional right to parent Alice demanded a return to her custody without further delay and without a fact-finding hearing, an updated evaluation, or a best interests legal analysis.

The delayed request to appoint a GAL was also properly denied. Whether or not a GAL is appointed is generally a discretionary matter. In re Adoption of a Child by J.D.S. II, 353 N.J. Super. 378, 402 (App. Div. 2002) (affirming the appointment of a GAL in a "highly contentious proceeding with the biological parents residing out-of-state"), aff'd, 176 N.J. 154 (2003). To appoint a GAL at the end of Alice's placement would only have further delayed her return.

II

We also affirm the judge's financial decisions. Child support is generally appropriate when a child is placed in the custody of relatives. Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2558 (2013). Short-term stays with relatives, however, are ordinarily outside the scope of child support orders, although extended visits between parents, or a Division of Child Protection and Permanency (Division) placement, may result in the adjustment or imposition of support. See id. at 2551-53 (explaining that a non-custodial supporting parent may be entitled to child support adjustments or abatement for extended visitation time) and N.J.S.A. 30:4C-29.1(a) (stating that when a child is placed in the Division's custody, a legally responsible parent for the child is liable for costs incurred as a result of the Division caring for the child). The length of time Alice stayed with plaintiffs was not anticipated, was not caused by Mother's acts of abuse or neglect, and plaintiffs did not press their initial request for child support during the two years of litigation prior to Alice's return to her mother. Given the judge's determination that plaintiffs intentionally delayed the return of Alice to her mother, we do not find that the judge abused his discretion in denying plaintiffs' request for child support from Mother.

Plaintiffs also object to the award of counsel fees to Mother. The court may award fees to any successful party in a family matter. R. 5:3-5(c). The decision is reviewable under the abuse of discretion standard. Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012). We should overturn the "trial court's determination on counsel fees only on the 'rarest occasion,'" and only for a clear abuse of discretion. Strahan v. Strahan, 402 N.J. Super. 298, 317 (App Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). The court should consider the following factors:

(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.

[R. 5:3-5(c).]

Even though the decision on fees is discretionary, the court must consider the above factors in making its determination. Pressler & Verniero, Current N.J. Court Rules, comment 4.1 on R. 5:3-5 (2013).

In discussing his decision to grant Mother legal fees, the judge stated, "One side appears to be better funded than the other. [I] will include an award of attorney's fees to try to redress that injustice and imbalance . . . ." Additionally, he stated,

A mistake I have made is letting an underfunded . . . mother be overridden in this process and in this matter. That will not happen anymore. I'll be ordering attorney's fees, counsel for the defendant shall submit a certification for attorney's fees for this and all orders referenced in my decision today in some reasonable fashion. It's not intended to be a windfall but this defendant mother has been deprived of something she should not have been.

Although the judge did not explicitly review the factors listed in Rule 5:3-5(c), he did on several occasions discuss his determination that plaintiffs were intentionally thwarting his decision to return Alice to her mother. We defer generally to a trial judge's perspective in light of the judge's ability to assess the testimony of witnesses. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citations omitted). The judge questioned Mother under oath, Mother argued on her own behalf during part of the litigation, and the judge had the opportunity to review each application, and every report and letter from Dr. Hagovsky. The judge obtained, through this process, an informed perspective as to which party was litigating in good faith.

We do not intend to imply that plaintiffs did not believe that they were acting in Alice's best interest, but the failure to fully comply with the letter and spirit of court orders was found to constitute bad faith. The judge also determined that Mother was far less financially secure than plaintiffs. Bad faith and relative financial ability to fund the litigation are the two most significant factors in a determination of counsel fees. See Williams v. Williams, 59 N.J. 229, 233 (1971) (awarding legal fees in a matrimonial action requires "courts [to] focus on several factors, including the wife's need, the husband's financial ability to pay and the wife's good faith in instituting or defending the action"). We defer to the judge's discretion on this issue as well as the other issues discussed above.

Affirmed.


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