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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...