D.S. VS. P.G. AND L.S. (FD-03-1278-16, BURLINGTON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: January 8, 2021
• Docket: A-4699-18T1
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4699-18T1

D.S.,

Plaintiff-Appellant,

v.

P.G. and L.S.,

Defendants-Respondents. __________________________

Submitted September 29, 2020 – Decided January 08, 2021

Before Judges Messano, Hoffman and Suter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FD-03-1278-16.

Maleski, Eisenhut & Zielinski, LLC, attorneys for appellant (Adam M. Eisenhut, of counsel and on the briefs; Neil Brazer, on the briefs).

Caruso Smith Picini, PC, attorneys for respondent P.G. (Marcia DePolo, on the brief).

PER CURIAM This appeal concerns a long-running family dispute regarding the custody

of B.G.1 (Bob), the twelve-year-old son of defendants, L.S. (Mom) and P.G.

(Dad), and the grandson of plaintiff D.S., Bob's maternal grandmother (MGM).

Because we are satisfied the appeal is both interlocutory and now moot, we

dismiss the appeal and remand for further proceedings.

I.

We derive the following facts from the record. In 2013, the Mercer

County Family Part entered an order granting defendants joint legal custody of

Bob, with Mom designated as the parent of primary residence (PPR). At that

time, Dad lived in Texas, and Mom lived in Mercer County with her mother,

MGM.

On July 23, 2015, MGM obtained an order requiring defendants to show cause

why the court should not grant her custody of Bob, based upon allegations of

escalating alcohol abuse by Mom. The court entered an interim order granting MGM

physical custody of Bob and requiring that Mom's "parenting time . . . shall be

supervised." After the Division of Child Protection and Permanency (the Division)

initiated proceedings upon learning of Mom's alcohol abuse, on October 28, 2015,

1 We use initials and pseudonyms to identify the parties and the minor child, in accordance with Rule 1:38-3(d)(3,12 and 13). A-4699-18T1 2 the court ordered that MGM, Mom, and Dad "shall temporarily" share joint legal

custody of Bob and that MGM "shall have sole physical custody until further notice

of the court."

The matter was subsequently transferred to the Burlington County Family

Part.2 On July 13, 2016, the court entered an order providing, "Legal custody of the

child shall be shared jointly by all three parties, . . . . Physical custody of the child

shall remain with [MGM]." Various orders followed, amending the parenting time

and visitation rights of Mom and Dad, but maintaining the same custody

arrangement as set forth in the July 13, 2016 order.

In August 2018, Dad filed an emergent application, requesting the court

terminate MGM's custody of Bob and grant him residential custody, including

permission to relocate Bob to his home in Texas. In response, MGM filed a

motion to modify the prior custody order, seeking a new order that would find

that she "is a psychological parent of [Bob] and thus has co-equal rights" as

Mom and Dad. In January and March 2019, the motion judge held a plenary

hearing on the custody issues, including Dad's request for physical custody and

permission to relocate, as well as MGM's motion seeking a determination that

she had become a psychological parent of Bob. In addition to hearing the

2 The record does not reflect the reason for the venue change. A-4699-18T1 3 testimony of the three parties and Mom's sister, the motion judge also personally

interviewed Bob.

On April 3, 2019, the motion judge rendered his decision orally and issued

an accompanying order. The judge found sufficient changed circumstances to alter

the prior custody order and granted joint legal custody to Mom and Dad, with Mom

as PPR. Additionally, the judge expressly ruled that MGM had not established she

had become a psychological parent of Bob and specifically provided that she no

longer shared joint legal custody of Bob. The judge's order provided MGM with

visitation "for two consecutive weeks in the summer" and permitted her to "initiate

a phone call or other electronic communication on a twice[-]weekly basis[.]" The

order further stated that this new custody arrangement would become effective April

27, 2019; in the interim, the order provided Mom "shall have unsupervised parenting

time" on the weekend of April 13, 2019.

Before this new custody arrangement went into effect, Mom relapsed in her

recovery. As a result, MGM filed an order to show cause, requesting a stay of the

April 3 order pending appeal. MGM certified Mom failed to pick up Bob for Mom's

parenting time and was now homeless, unemployed, and abusing alcohol again. At

a hearing on April 16, Mom was unable to provide the judge with her current address

or to adequately explain why she failed to pick up Bob on April 13. The hearing

A-4699-18T1 4 also revealed the Division opened a new investigation, after a caseworker reported

that Mom refused to provide an address for a residence assessment and sounded

drunk on the phone. At the conclusion of the hearing, the judge ruled:

Based on the testimony of [Mom], it's clear to the [c]ourt that[,] at the present time, at the very least, she was not able to present to the [c]ourt that she has the ability to take care of the child. I did not hear anything about where the child would stay if she . . . became the parent of primary residence on April 27th, as I had previously ordered.

The fact that [Mom] was not able to give an adequate explanation or adequate testimony with regard to what happened on Saturday, April 13th, with regard to the parenting time that I had ordered[,] causes the [c]ourt great concern, and also her testimony that she presented today was quite disjointed.

The judge then entered an order staying his April 3 order, returning Bob to MGM's

custody, and reinstating joint legal custody of Bob among the three parties.

Shortly thereafter, MGM filed a motion for reconsideration of the judge's

April 3, 2019 decision. On May 10, 2019, the judge held a hearing on the

reconsideration motion and to further address MGM's order to show cause; in the

interim, he received relevant records submitted by the Division.

The motion judge ruled the issues generated by MGM 's order to show cause

warranted a new plenary hearing. The judge found the other issues raised by MGM

A-4699-18T1 5 in her motion for reconsideration, regarding the admissibility of evidence and other

alleged procedural errors, were rendered moot by his subsequent April 16 order. The

judge also denied reconsideration of his previous finding that MGM was not a

psychological parent for Bob.

This appeal followed, with MGM challenging the motion judge's adverse

finding on the psychological parent issue and his determination to schedule another

plenary hearing to further address the issue of Bob's custody. In November 2019,

we requested the motion judge to settle the record regarding whether he determined

certain pieces of evidence were admissible. On December 19, 2019, the judge

responded to our request.3

II.

Appellate review of a trial court's findings in a custody dispute is limited.

Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings

by the trial court are binding on appeal when supported by adequate, substantial,

credible evidence." Id. at 411-412 (citing Rova Farms Resort, Inc. v. Investors

Ins. Co., 65 N.J. 474, 484 (1974)). Furthermore, appellate courts afford

3 The trial judge issued an order clarifying that he deemed inadmissible against Dad documents describing a 2014 marijuana arrest and a 2010 domestic violence incident. The judge also clarified that he did receive in evidence certain screenshots of texts sent by Mom to MGM in 2012, but noted that he did not "give them much weight with regard to [his] ultimate decision[.]" A-4699-18T1 6 "substantial deference to the Family Part's findings of fact because of

that court's special expertise in family matters." Id. at 413. "Deference is

especially appropriate when the evidence is largely testimonial and involves

questions of credibility because, having heard the case, and seen and observed

the witnesses, the trial court has a better perspective than a reviewing court in

evaluating the veracity of witnesses." P.B. v. T.H., 370 N.J. Super. 586, 601

(App. Div. 2004) (citing Pascale v. Pascale, 113 N.J. 20, 33 (1988)). However,

appellate courts review issues of law de novo, even those that arise in the context

of a custody dispute. R.K. v. F.K., 437 N.J. Super. 58, 61 (App. Div. 2014).

New Jersey’s statutory scheme, the United States Constitution, and common

sense "afford a fit parent a superior right to custody of his or her child as against

third parties." Watkins v. Nelson, 163 N.J. 235, 245 (2000). Thus, "a presumption

of custody exists in favor of the parent." Id. at 246. Both parents have an equal right

to custody of their child. N.J.S.A. 9:2-4.

To modify a custody order, a party must first make out a prima facie showing

of changed circumstances. R.K. v. F.K., 437 N.J. Super. 58, 62 (App. Div. 2014).

If a genuine and substantial dispute over the requested change occurs, the court will

order a plenary hearing. Ibid; Rule 5:8-6. The court then considers the best interests

A-4699-18T1 7 of the child in deciding whether to order a change in custody. R.K., 437 N.J. Super.

at 58.

Unlike a child’s legal parents, grandparents have no inherent rights to custody

of a child. Watkins v. Nelson, 163 N.J. 235, 245 (2000). Likewise, a grandparent

or other third party granted custody via court-order does not bestow parental rights

upon that third party. Tortorice v. Vanartsdalen, 422 N.J. Super. 242, 251-252 (App.

Div. 2011). However, "[t]he right of parents to the care and custody of their children

is not absolute." V.C. v. M.J.B., 163 N.J. 200, 218 (2000). While there is a

presumption supporting a natural parent's "right to the care, custody, and control of

his or her child," this "presumption in favor of the parent will be overcome by 'a

showing of gross misconduct, unfitness, neglect, or "exceptional circumstances"

affecting the welfare of the child[.]'" K.A.F. v. D.L.M., 437 N.J. Super. 123, 131-

132 (App. Div. 2014)(quoting Watkins v. Nelson, 163 N.J. 235, 246

(2000)(alteration in original)). An exceptional circumstance that overrides the

presumption favoring the natural parent occurs when a third party has become a

child's "psychological parent," i.e. where "a third party has stepped in to assume the

role of the legal parent who has been unable or unwilling to undertake the obligations

of parenthood." V.C., 163 N.J. at 219 (citing Sorentino v. Family & Children's Soc.

of Elizabeth, 72 N.J. 127, 132 (1976)).

A-4699-18T1 8 In order to be recognized as a psychological parent, the third party must file a

petition with the court. Lewis v. Harris, 188 N.J. 415, 450 n. 20 (2006). Upon this

petition, and after the court determines a third party is a child's psychological parent,

"he or she stands in parity with the legal parent." V.C., 163 N.J. at 227-228 (citing

Zack v. Fiebert, 235 N.J. Super. 424, 432 (App. Div. 1989)). On the other hand, a

mere court-ordered award of custody to a third party does not grant the custodian

parental rights, nor does it terminate an existing parent-child relationship. Further,

a custody award does not entitle the third party to enter the constitutionally-protected

zone of autonomous privacy that is fundamental to the legal parent-child

relationship. Tortorice v. Vanartsdalen, 422 N.J. Super. 242, 251-252 (App. Div.

2011).

A third party establishing exceptional circumstances by proving

psychological parentage "may rebut the presumption in favor of a parent seeking

custody even if he or she is deemed to be a fit parent." Watkins, 163 N.J. at 247-

248. "In such circumstances, the legal parent has created a family with the third

party and the child . . . . essentially giving [the child] another parent[.]" V.C., 163

N.J. at 227. Once the court determines a third party is a child's psychological parent,

"he or she stands in parity with the legal parent" such that "[c]ustody and visitation

issues between them are to be determined on a bests interests [of the child]

A-4699-18T1 9 standard[.]" V.C., 163 N.J. at 227-228 (citing Zack v. Fiebert, 235 N.J. Super. 424,

432 (App. Div. 1989)).

In V.C., our Supreme Court set forth the requirements that must be met in

order for a third party to establish psychological parentage. V.C., 163 N.J. at 223.

These four elements must be satisfied:

[1] the legal parent must consent to and foster the relationship between the third party and the child; [2] the third party must have lived with the child; [3] the third party must perform parental functions for the child to a significant degree; and [4] most important, a parent-child bond must be forged.

[Ibid.]

In discussing the fourth element, the Court stated, "What is crucial here is not the

amount of time but the nature of the relationship. . . . Generally, that will require

expert testimony." Id. at 226-227.

In his April 3, 2019, oral opinion, the motion judge first noted that

psychological parentage could only be established by court order, and none of the

prior judges who heard issues involving Bob's custody ever deemed MGM to be

Bob's psychological parent. Next, the judge noted that in order to establish

psychological parentage, expert testimony is generally required. Nevertheless, later

during his oral opinion, when discussing MGM's credibility, the judge said:

A-4699-18T1 10 The [c]ourt will note that she has had a big influence on this child's life. Has been there when her daughter has asked her to be. And if not for the fact that there is no expert testimony with regard to the psychological parent issue, the [c]ourt would look at many of these factors favorably to the plaintiff/maternal grandmother, specifically with regard to fostering a parent-like relationship between the petitioner and the child; and living with the child in the same household; and taking significant responsibility for the child's care, education, and development.

The judge then made adverse findings to MGM regarding the issue of consent,

finding Dad never consented to the creation of a parent-child relationship

between MGM and Bob. As for Mom, the judge noted "there was a level of

consent," but added, "Perhaps that was withdrawn." In denying Mom's motion

for reconsideration, the judge restated his finding that MGM failed to prove the

consent element necessary to establish her psychological parent claim.

Since Mom did not file a brief on this appeal, Dad is the only respondent.

As a result, the only issue that is not moot is whether or not MGM established

her psychological parent claim. Even if we were to affirm the motion judge's

decision holding that MGM did not establish she was Bob's psychological parent

as of April 2019, such a determination would not preclude MGM from asserting

this claim again, particularly since Bob has remained in her sole physical

custody for an additional twenty months.

A-4699-18T1 11 At the time this appeal was filed, the motion judge had vacated his order

of April 3, 2019; as a result, no final order concerning child custody had been

entered. A matter is not considered to be final and appealable as of right until

all issues as to all parties are resolved. R. 2:2-3(a); Vitanza v. James, 397 N.J.

Super. 516, 517-18 (App. Div. 2008); Yuhas v. Mudge, 129 N.J. Super. 207, 209

(App. Div. 1974). Consequently, we conclude that this appeal is interlocutory

and should have been pursued by motion for leave to appeal. R. 2:2-4. In

addition, we agree with the assessment of the motion judge that "a lot of what

the [c]ourt determined . . . after the plenary hearing has been rendered moot by

subsequent developments[.]" We therefore dismiss MGM's appeal and remand

for further proceedings.

On remand, the Family Part shall hold a case management conference within

thirty days. At that time, the trial court shall address any requests for discovery

regarding relevant developments since the initial plenary hearing and shall set a date

for the new plenary hearing, if necessary. In addition, the court shall also consider

the appointment of a guardian ad litem in this case. See R. 5:8A. We note with

approval the comment of the motion judge at the June 21, 2019 hearing that he was

"inclined to appoint one."

A-4699-18T1 12 Reversed and remanded. We do not retain jurisdiction.

A-4699-18T1 13