May 14, 2013
PATRICIA L. KOEPPEL, Plaintiff-Respondent,
JUSTIN M. PIERSON, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FD-08-973-06.
Henry M. Weinfeld, attorney for appellant.
Morgenstern & Rochester, L.L.C., attorneys for respondent (Andrew L. Rochester, on the brief).
Before Judges Hayden and Lisa.
Defendant Justin M. Pierson appeals from the February 6, 2012 Family Part order denying his motion to reduce plaintiff Patricia L. Koeppel's visitation time with Jane,  his daughter and plaintiff's granddaughter. For the reasons that follow, we affirm.
Defendant and Nicole Connelly are the parents of Jane, born in 2005. Since a few months after Jane's birth, defendant, and at times Connelly, resided with plaintiff, defendant's mother. The parents consented to plaintiff having residential custody of Jane and a March 22, 2006 court order designated her as the parent of primary residence. Defendant was struggling with substance abuse issues.
In 2008, defendant and Connelly filed for joint custody of Jane. The motion judge denied their motions on March 10, 2008. A different motion judge awarded joint custody between plaintiff and Connelly on July 3, 2008, with plaintiff remaining the parent of primary residence, and ordered defendant to provide proof of completion of a drug treatment program. After several attempts, defendant successfully completed a substance abuse program in 2009 and represented that, except for his prescribed methadone, he has remained drug free since that time. Defendant and his current wife resided with plaintiff in 2010 until plaintiff asked them to leave. Plaintiff has an order for child support from defendant for $15 per week, which he rarely paid.
On May 19, 2011, Judge Robert P. Becker, Jr., without holding a plenary hearing, transferred residential custody of Jane to defendant. The May 19, 2011 order provided for joint custody to be shared by the parties and Connelly, and named defendant the parent of primary residence. The order also established that plaintiff and Connelly have parenting time on alternating weekends as arranged by the parties. On October 14, 2011, Judge John Tomasello issued an order that specified that plaintiff would have visitation with Jane on alternating weekends, from Fridays at 5:00 p.m. to Sundays at 5:00 p.m. Neither party appealed from either order.
On December 23, 2011, plaintiff filed a motion requesting, among other things, an increase in parenting time to include every weekend, holidays and vacations. She also complained that defendant and his wife were interfering with her visitation and making pejorative remarks to Jane about her. Defendant filed an answer opposing plaintiff's motion and also filed a cross motion, requesting, among other matters, that the court modify plaintiff's visitation to one weekday evening every other week, suspend all overnight visitation with plaintiff until a home inspection and a custody assessment were conducted, and eliminate plaintiff's visitation when it fell on holidays and vacations. In his certification, defendant alleged that plaintiff brought Jane to cheerleading practices late, sometimes refusing to take her, and that plaintiff mistreated his wife. He also accused plaintiff of having longstanding health and psychological problems and an extremely messy home that made it unsafe for Jane to be there.
Judge Tomasello held a hearing on February 6, 2012. Defendant argued that the judge must determine initially whether his parenting rights were superior to plaintiff's. He maintained that plaintiff was required, pursuant to Moriarty v. Bradt, 177 N.J. 84 (2003), to prove substantial harm to the child from not visiting with her in order to demonstrate the right to grandparent visitation time. Because plaintiff could not show harm to the child and since, as the father, his parental rights trumped the grandmother's, defendant contended that his motion to reduce plaintiff's parenting time should be granted.
Judge Tomasello denied plaintiff's request to extend visitation, noting that plaintiff did not provide a sufficient reason to expand the current visitation and plaintiff had not appealed this order. The judge also denied defendant's motion to limit plaintiff's established visitation time, finding defendant had not proven a change in circumstances. Because defendant had consented to the prior court order establishing visitation rights, the judge reasoned that defendant could not rely on the principles of Moriarty at this late date. Defendant had not appealed the earlier court orders regarding visitation, and as such, the judge explained, the burden was on defendant to show changed circumstances since the visitation was set.
This appeal followed.
On appeal, defendant raises the following contentions for our consideration:
POINT I: THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING THE DEFENDANT'S MOTION FOR MODIFICATION OF GRANDPARENTING TIME AND/OR A PLENARY HEARING.
A: THE COURT FAILED TO REVIEW THE STATUTORY FACTORS AND MAKE A FINDING OF FACT TO DETERMINE IF IT WAS IN THE CHILD'S BEST INTEREST TO CONTINUE A GRANDPARENT VISITATION SCHEDULE.
B: THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING THE DEFENDANT'S MOTION FOR
MODIFICATION OF GRANDPARENTING TIME AND/OR A PLENARY HEARING BECAUSE IT MISAPPLIED THE CASE LAW IN TORTORICE AND NEVER ESTABLISHED THE PLAINTIFF AS A PSYCHOLOGICAL PARENT.
POINT II: THE COURT VIOLATED
DEFENDANT/APPELLANT'S CONSTITUTIONAL RIGHT AS A FIT PARENT TO RAISE A CHILD AS HE SEES FIT WITHOUT INTERFERENCE FROM THE COURT BY ASSUMING THAT EXTRAORDINARY CIRCUMSTANCES STILL EXISTED WHICH PUT HIS PARENTAL AUTONOMY IN QUESTION.
After reviewing the record we conclude that Judge Tomasello did not err in determining that the evidence of changed circumstances was inadequate to establish a prima facie case warranting either a change in visitation or a plenary hearing. We reject defendant's claim that, although he previously consented to visitation, the matter should at this point be treated as a new request by the grandparent to have visitation, warranting her showing that harm to the child would result from not providing visitation. Moreover, we are convinced that the undisputed facts show that plaintiff is Jane's psychological parent.
Defendant's principal argument concerns the Grandparent Visitation statute, N.J.S.A. 9:2-7.1, as construed by Moriarty, supra, 177 N.J. at 112-18. In Moriarty, our Supreme Court noted that an order compelling a parent to permit a child to visit a grandparent implicated the parent's fundamental "right to family autonomy and privacy." Id. at 116. Accordingly, there is a presumption favoring deference to a fit parent's choice about visitation which must be overcome before the court may enter an order requiring visitation with grandparents as being in the child's best interest. Id. at 116-17. A grandparent must establish by a preponderance of the evidence "exceptional circumstances" warranting the best interest inference. Ibid. A grandparent may satisfy the burden and gain entitlement to visitation against the wishes of a fit parent by showing that the "visitation is necessary to avoid harm to the child." Id. at 117. Alternatively, a grandparent may demonstrate that he or she has become a psychological parent to the child and stands in the shoes of a parent. Id. at 114-115, 116 n.3.
The May 2011 order giving defendant residential custody and giving plaintiff visitation was the culmination of five years of court involvement with this family, wherein plaintiff was at all times the parent of primary residence. There were times when defendant also lived with plaintiff but, as he was a heroin addict, he was never appointed as Jane's residential custodian. Eventually, in May 2011, the judge maintained joint custody between plaintiff and defendant, changed residential custody to defendant, and provided for plaintiff to have visitation.
In our view, implicit in the judge's preservation of plaintiff's long-standing joint custody status and the visitation award is a finding that plaintiff, by virtue of living with Jane for over six years and being the court-designated parent of primary residence for five years, was a psychological parent to the child. A biological parent and a grandparent with psychological parent status "stand in parity to one another." Tortorice v. Vanartsdalen, 422 N.J.Super. 242, 252 (App. Div. 2011), certif. denied, 209 N.J. 233 (2012). In order to show that a party has a psychological parent relationship with a child, that party
must prove four elements: (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. v. M.J.B., 163 N.J. 200, 223 (2000) (quoting In re Custody of H.S.H.-K., 193 Wis.2d 649, 658, 533 N.W.2d 419, 421 (1995)).]
These determinations are fact sensitive. Id. at 223 n.6. The undisputed facts here show that Jane resided with plaintiff since a few months after her birth, defendant consented to plaintiff having custody of Jane, plaintiff assumed significant responsibility for the child, and the child resided with plaintiff for over six years. Thus, at the time of the change of residential custody, plaintiff had been the court designated principal caregiver for this child for five years and lived with the child for all but two months of the child's life. While, commonly, experts may be needed to determine the strength of the grandparent-child bond, under these facts the existence of such a bond is not open to principled disagreement. Hence, it is apparent, as the 2011 joint custody and visitation order reflects, that plaintiff was a psychological parent at the time of the change of custody and stood in parity with defendant.
In general, since the Family Part has special expertise in family matters and has the opportunity to see and hear the witnesses first-hand, its fact-finding should be accorded particular deference on appeal. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). However, we review the Family Part's interpretation of the law de novo without any special deference. Manalapan Realty, L.P v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). A decision concerning custody or visitation is up to the sound discretion of the judge. See Randazzo v. Randazzo, 184 N.J. 101, 113 (2005).
A judge must consider a request for modification of a custody or visitation order in accordance with the procedural framework established in Lepis v. Lepis, 83 N.J. 139, 157-59 (1980). To establish a prima facie case for modification of a visitation arrangement, the moving party must show a substantial change in circumstances and that the changed circumstances affect the welfare of the child such that his or her best interests would best be served by modifying the current arrangement. Hand v. Hand, 391 N.J.Super. 102, 105 (App. Div. 2007). In evaluating whether the requisite changed circumstances exist, the court must consider the circumstances that existed at the time the current order was entered. Sheehan v. Sheehan, 51 N.J.Super. 276, 287-88 (App. Div. 1958). After considering those facts, the court can then "ascertain what motivated the original judgment and determine whether there has been any change in circumstances." Id. at 288.
Here, the circumstances relevant on this application were those that had changed since the original order setting visitation on May 19, 2011. Most of the disputed facts defendant raises involve complaints of maltreatment during his childhood or accusations about plaintiff's mental and physical health as well as her poor housekeeping skills. However, none of these allegations arose since May 2011; instead, all appear to have been known to defendant either when he lived with plaintiff, when he consented in the visitation arrangement, or when he failed to appeal the visitation order. The remaining issues defendant raises, such as plaintiff's lateness regarding Jane's cheerleading practice and the disrespect between plaintiff and defendant's new wife concern problems between the adults Defendant failed to show that these difficulties if true amount to a substantial change so harmful to the child that her best interests require a change in the current visitation arrangement
Further we reject defendant's claim that at a minimum he was entitled to a plenary hearing on the disputed facts Contrary to defendant's contention this is not a case where the judge decided a "genuine and substantial" issue of custody involving relevant disputed facts on the basis of conflicting affidavits without holding a hearing See Mackowski v Mackowski 317 N.J. Super 8 11-14 (App Div 1998) Rather this is a case where the defendant's allegations were inadequate to raise a genuine dispute about whether circumstances that substantially affected the child's welfare had changed since the last application
We find defendant's remaining arguments to be without sufficient merit to warrant further discussion R 2:11-3(e)(1)(E)
As defendant's proofs were insufficient to show a change of circumstances or warrant a plenary hearing we find no abuse of discretion and affirm the order under review