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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1907-22
K.C.,
Plaintiff-Appellant,
v.
D.C. and D.J.,
Defendants-Respondents. ___________________________
Argued March 19, 2024 – Decided May 21, 2024
Before Judges Mayer and Whipple.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FD-20-0996-17.
James P. Yudes argued the cause for appellant.
Respondents have not filed a brief.
PER CURIAM Plaintiff K.C., a grandfather, appeals from a February 23, 2023 order
denying his order to show cause (OTSC) seeking custody of his granddaughter,
H.C.1 We vacate and remand for a hearing.
We glean the following facts from the record. In April 2016, D.C. gave
birth to a girl, H.C. In January 2017, D.C. was incarcerated, and J.D., H.C.'s
father, did not have custody at the time. K.C. was awarded sole residential
custody of H.C., and her two brothers, with D.C.'s consent. Between January
2017 to April 2018, K.C. enrolled H.C. in daycare, and provided for her
medical care, food, shelter, clothing, enrichment and social activities.
In April 2018, upon D.C.'s release from prison, she was awarded
parenting time every other weekend. Around this time, the Division of Child
Protection and Permanency (Division) no longer monitored the family and by
June 2018, physical and legal custody was returned to D.C. because she
complied with the court's requirements to obtain custody. The court also
ordered D.C. to provide K.C. with access to, and parenting time with, H.C.
D.C. was prohibited from leaving New Jersey without judicial approval.
On October 31, 2018, K.C. filed an application to regain custody of H.C.
and her two brothers, but his request was denied. Nevertheless, according to
1 We use initials to protect the confidentiality of the child. R. 1:38-3(d)(13).
A-1907-22 2 K.C., D.C. continued to leave H.C. and her brothers in K.C.'s care. In January
2019, K.C. enrolled H.C. in elementary school, where she attended classes
until June 2020. K.C. continued to care for H.C. and took the child on
vacations. K.C. alleges D.C. failed to provide care because the children
appeared undernourished and were often late for school.
D.C. moved to Maryland in 2020 without court approval, initially
leaving H.C. with K.C. She later removed H.C. from K.C.'s care and took her
to Maryland. K.C. visited with H.C. in Maryland on a regular basis.
Allegedly, H.C. told K.C. that she was subjected to physical abuse by D.C.
Concerned about her wellbeing, on November 12, 2020, K.C. moved for
custody of H.C. J.D. also filed an application with the court because he too
was worried about H.C.'s wellbeing. Additionally, J.D. alleged D.C. prevented
him from seeing H.C. and threatened him if he sought parenting time.
According to K.C., around this time J.D. executed a consent agreement where
he agreed to sharing joint legal and physical custody of H.C. with K.C.
In February 2021, J.D. consented to H.C. living with D.C. in Maryland
and, subsequently, D.C. received judicial permission to move out of state. As
a result, K.C. withdrew his New Jersey application and filed an application
A-1907-22 3 seeking custody of H.C. in Washington County, Maryland, because K.C.
believed Maryland had jurisdiction over the custody matters.
In March 2021, J.D. sent correspondence to H.C.'s school, which he later
forwarded to K.C., expressing concern for H.C.'s wellbeing. Meanwhile,
Maryland's Child Protective Services (CPS) visited D.C.'s home on three
separate occasions. The findings of the CPS investigation are not in the record
before us and are unknown.
In July 2021, the Maryland court denied D.C.'s motion to dismiss K.C.'s
application seeking custody of H.C. In November 2021, the Maryland court
granted D.C.'s motion to dismiss K.C.'s application for lack of jurisdiction.
Throughout this time, despite the Maryland court's order, K.C. continued to
visit H.C. with D.C.'s consent.
K.C. filed for custody of H.C. in New Jersey. On April 12, 2022, the
court determined New Jersey "shall continue to exercise exclusive jurisdiction"
over H.C. and ordered D.C. to coordinate "parenting time" between K.C. and
H.C. However, D.C. delayed parenting time. In December 2022, the court
entered an order establishing a parenting time schedule for K.C.
On January 28, 2023, K.C.'s fiancée alleged she observed bruises on
H.C.'s back and H.C. informed her that H.C.'s brothers and D.C. physically
A-1907-22 4 abused her frequently. K.C. filed an OTSC on February 10, 2023, asserting
H.C. was being abused and sought an emergent change in H.C.'s residential
and physical custody so that she would reside with K.C. pending the court's
review of the matter. Although the court refused to consider the matter on an
emergent basis, it held oral argument on February 23, 2023.
K.C. argued he was H.C.'s psychological parent. The trial court ruled
K.C. lacked standing to object to D.C.'s parenting decisions and, also, that
K.C. needed to call CPS if he had concerns that H.C. was being abused. The
court did not hold a psychological parenthood hearing or take testimony before
summarily concluding, "I think being parented by her parents is in her best
interest" and "[it] makes no sense to me why I should listen to a certification
by someone who's obviously drilling the child when she comes there about
what's happened when she's with [m]om and [d]ad." Further, the court
declined to "interfere with the parents' rights to parent their child," noting that
they "are autonomous parents." In addition to failing to hold a psychological
parenthood hearing, the court made no new determination whether New Jersey
had jurisdiction over the custody dispute.
On February 24, 2023, the court denied K.C.'s OTSC seeking shared
custody of H.C. The court's order further stated it "will request [CPS] [to]
A-1907-22 5 submit an update/report as to their findings" for an in-camera review. The
court also explained it would determine whether K.C. could obtain a copy of
the CPS report after the court's review.
This appeal followed.
On March 21, 2023, the court filed an amplification of its decision and
order pursuant to Rule 2:5-1(d). In that amplification, the court cited a portion
of the applicable standard to determine whether a third party is a psychological
parent and stated that "[t]he facts here do not support a finding that [K.C.] is
[H.C.'s] psychological parent." Further, even though the court did not hold a
hearing, it stated, "K.C. is undoubtedly not the psychological parent of [H.C.]"
Additionally, the court explained CPS was the proper entity to investigate
issues of abuse and neglect. Citing no evidence, testimony, or documentation,
the court further stated that CPS "investigated" and "determined not to remove
[H.C.] from her parents' care."
Our review of a trial court's factual findings is limited. Cesare v.
Cesare, 154 N.J. 394, 411 (1998). "[F]indings by the trial court [in a custody
dispute] are binding on appeal when supported by adequate, substantial,
credible evidence." W.M. v. D.G., 467 N.J. Super. 216, 229 (App. Div. 2021)
(citing Cesare, 154 N.J. at 411-12). A reviewing court should not disturb the
A-1907-22 6 "factual findings and legal conclusions of the trial judge unless [it is]
convinced that they are so manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to offend the interests
of justice." Cesare, 154 N.J. at 412 (alteration in original) (citing Rova Farms
Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). When a court
denies a request for a modification of child custody without a plenary hearing,
the denial is reviewed for an abuse of discretion, with deference to the
expertise of the Family Part judge. Costa v. Costa, 440 N.J. Super. 1, 4 (App.
Div. 2015).
We accord deference to the findings of fact made by the Family Part
because of that court's expertise in family matters. Cesare, 154 N.J. at 413.
Deference is appropriate in matters where the evidence is "largely testimonial
and involves questions of credibility" because the trial court was in the best
position to evaluate the veracity of the witnesses. P.B. v. T.H., 370 N.J. Super.
586, 601 (App. Div. 2004). A reviewing court will review issues of law de
novo, including issues arising in a custody dispute. R.K. v. F.K., 437 N.J.
Super. 58, 61 (App. Div. 2014).
Here, in April 2022, the New Jersey court held it had exclusive,
continuing jurisdiction regarding K.C.'s custody application. Additionally, the
A-1907-22 7 April 2022 order establishing New Jersey maintained jurisdiction post-dated a
November 2021 order from the Maryland court determining Maryland lacked
subject matter jurisdiction regarding H.C.'s custody.
The Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA) and its New Jersey equivalent (NJUCCJEA) are used by New
Jersey courts to determine the state with authority to exercise jurisdiction of
child custody matters. Griffith v. Tressel, 394 N.J. Super. 128, 138 (App. Div.
2007); N.J.S.A. 2A:34-53 to -95. The NJUCCJEA "should be interpreted so as
to avoid jurisdictional competition and conflict." Ibid. The first inquiry a
court must consider is whether it has jurisdiction on a motion for child custody
or whether continuing jurisdiction over custody determinations exist. Id. at
139-40. Pursuant to N.J.S.A 2A:34-58, a child custody determination by a
New Jersey court that had jurisdiction binds all parties. Additionally, a
parenting time schedule, is considered a "custody determination" and
modification of such determination is a custody proceeding under the
NJUCCJEA. Griffith, 394 N.J. Super. at 137-38.
Here, K.C. was awarded "parenting time" under an April 2022 order,
where the court also held it had exclusive and continuing jurisdiction of H.C.
The court also set a schedule in response to K.C.'s application for parenting
A-1907-22 8 time. However, the court, when confronted with a motion to modify a child
custody order, must reevaluate whether the circumstances have changed so as
to divest the state of jurisdiction. Id. at 140-41. This did not happen here.
Pursuant to N.J.S.A. 2A:34-66(a)(1)-(2), "exclusive, continuing
jurisdiction" is retained unless the New Jersey court determines that neither the
child or one of its parents has a "significant connection with this State and that
substantial evidence is no longer available in this State concerning the child's
care, protection, training and personal relations" or a court establishes that the
child or parent do not presently reside in the state.
Here, the court did not reexamine whether New Jersey still retained
jurisdiction. Only a New Jersey court can decide that it no longer has
jurisdiction over child custody issues based on a lack of significant connection
and substantial evidence. Griffith, 394 N.J. Super. at 141. In Griffith, a
significant connection existed because the child returned to New Jersey for
parenting time. Id. at 146-47. The determination of whether New Jersey
retained jurisdiction is central to whether K.C. can establish psychological
parenthood. In the present case, K.C. asked the court to determine whether it
retained jurisdiction. During the OTSC hearing, the court did not address the
jurisdiction question, nor retaining the jurisdiction. On remand, the court must
A-1907-22 9 first determine whether jurisdiction remained, and a finding is required as to
jurisdiction under the NJUCCJEA. Once the jurisdictional element is satisfied,
the court may proceed to address the issue of custody.
Furthermore, when presented with issues regarding custody, the court's
primary consideration is on the best interests of the child. Kinsella v. Kinsella,
150 N.J. 276, 317 (1997). A parent's custodial rights can be challenged by a
third party who presents clear and convincing evidence of parental unfitness,
abandonment, gross misconduct, or the existence of "exceptional
circumstances" affecting the child's welfare. Watkins v. Nelson, 163 N.J. 235,
246 (2000); see also V.C. v. M.J.B., 163 N.J. 200, 219 (2000) (discussing
psychological parenthood); N.J.S.A. 9:2-4 (stating that parents' right to
custody is equal and discussing custody orders); N.J.S.A. 9:2-9 (allowing
interested party to institute action pertaining to welfare of child); N.J.S.A. 9:2 -
10 (discussing orders or judgment as to custody).
When evaluating such a challenge, the court must first determine
whether the presumption in favor of the legal parent was overcome by a
showing of "unfitness" or "exceptional circumstances." Watkins, 163 N.J. at
247, 254. One of those grounds must be demonstrated before the court
considers the second part of the custody analysis. Id. at 254. Exceptional
A-1907-22 10 circumstances include situations 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. In such cases, the third
party may seek custody of the child, even when the biological parents are fit.
Id. at 219-20. In the second step of the analysis, the court must analyze
whether awarding custody or other relief to the third party would be in the best
interests of the child. Watkins, 163 N.J. at 254.
Importantly, only a third party who has stepped in to assume the
obligations of parenthood has standing to raise a psychological parenthood
claim. See V.C., 163 N.J. at 219 (explaining who can show exceptional
circumstances as psychological parent). A stranger could not challenge a
child's custodial placement because such a person could not show the
exceptional circumstances required to obtain a best interests hearing. P.B.,
370 N.J. Super. at 598.
In V.C., 163 N.J. at 219-20, our Court set forth the standard for
determining whether an individual is a psychological parent. For a third party
to prove psychological parenthood, he or she must demonstrate four elements.
Id. at 223. First, the petitioner must show the biological or adoptive parent
"consented to, and fostered, the petitioner's formation and establishment of a
A-1907-22 11 parent-like relationship with the child." Ibid. The term "fostered" means "that
the legal parent ceded over to the third party a measure of parental authority
and autonomy and granted to that third party rights and duties vis -a-vis the
child that the third party's status would not otherwise warrant." Id. at 224.
Also, "consent" will have different meanings under different scenarios. Id. at
223 n.6.
Second, the petitioner must show that "the petitioner and the child lived
together in the same household." Id. at 223. Third, the petitioner must have
"assumed the obligations of parenthood by taking significant responsibility for
the child's care, education, and development without expectation of financial
compensation." Ibid. The court should evaluate "the nature, quality, and
extent of the functions undertaken by the third party and the response of the
child to that nurturance." Id. at 226. Fourth, the petitioner must have been in
a parental role for a length of time that was sufficient to have created a bond
with the child that was parental and dependent in nature. Ibid.
The Court explained that what "is crucial . . . is not the amount of time
but the nature of the relationship." Ibid. The bond between a psychological
parent and the child need not be the same as or stronger than that of the bond
between the biological parents and the child. Id. at 226-27. Notably, proof of
A-1907-22 12 the parent-child bond is critically important and requires expert testimony.
Ibid. In fact, the only prong of the psychological parent test requiring expert
testimony is the fourth prong. Id. at 223, 227.
Overall, the four-prong analysis is fact-sensitive. Id. at 223. If
successfully proven, a third party who is considered to be a psychological
parent will be placed "in parity" with a legal parent for the purposes of a
custody determination. Id. at 227-28, 230. Importantly, once a third party is
"in parity" with the legal parent, the third party "stands in the shoes of the
biological parent" and the court must then conduct a best interests analysis
under N.J.S.A. 9:2-4(c). Watkins, 163 N.J. at 254.
After deciding the psychological parenthood issue, the court must then
decide whether the award of custody or visitation to the third party would
"promote the best interests of the child." Ibid. The court should focus on the
"safety, happiness, physical, mental and moral welfare of the child." Beck v.
Beck, 86 N.J. 480, 497 (1981) (quoting Fantony v. Fantony, 21 N.J. 525, 536
(1956)). At the same time, our Court has warned against removing a child
from his or her parents because of the parents' limited means. Watkins, 163
N.J. at 252-53. As the Watkins Court noted, the best interests standard does
not require any idealized lifestyles. Ibid. More specifically, the best interests
A-1907-22 13 standard cannot mean the "better" interests of the child. Ibid. "It is not a
choice between a home with all the amenities and a simple apartment, or an
upbringing with the classics on the bookshelf as opposed to mass media, or
even between parents or providers of vastly unequal skills." Id. at 254-55
(quoting N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 603
(1986)).
When an analysis of the child's best interests demonstrates that both the
biological parent and the psychological parent are equally capable of caring for
the child, custody will be awarded to the biological parent and visitation to the
psychological parent. V.C., 163 N.J. at 234. Pursuant to N.J.S.A. 9:2-4(c), the
court may enter an order that: provides joint custody of the child to both
parents with provisions for residential arrangements that allow the child to
reside with one parent or with both and, also, provisions for decision -making
with regard to the child; awards sole custody to one parent with parenting time
for the non-custodial parent; or sets forth any other custody arrangement as the
court determines is in the best interests of the child.
We conclude, based upon the record before us, if the court finds
jurisdiction, the court should conduct the required psychological parenthood
analysis to determine if K.C.'s challenge to D.C.'s custody satisfied the legal
A-1907-22 14 requirements. Specifically, the court should consider whether exceptional
circumstances existed and, if so, then determine a custody award in the best
interests of the child. The court failed to follow the required procedure in
addressing custody of H.C., particularly the first step of the analysis. Rather,
the court, made conclusionary statements without any testimony, hearing from
experts, or considering further evidence.
We note the following. K.C. filed his OTSC under the existing FD
docket number. The FD docket includes actions for child support, visitation,
and non-parent relatives seeking custody. B.C. v. N.J. Div. of Child Prot. &
Permanency, 450 N.J. Super. 197, 201 (App. Div. 2017). In contrast, the FN
docket consists of abuse and neglect matters, "as well as children in need of
services." Id. at 200, 205. Here, K.C. is a non-parent relative seeking custody
of H.C. on the basis that he is a psychological parent and, also, that H.C.
suffered physical abuse due to D.C.'s actions or inactions.
Typically, the court handles an FD matter in a summary fashion to
promote the "purpose of swiftly and effectively disposing of matters which
lend themselves to summary treatment." W.M., 467 N.J. Super. at 233
(quoting R.K. v. D.L., 434 N.J. Super. 113, 133 (App. Div. 2014)). For
example, summary actions in the Family Part typically lack any exchange of
A-1907-22 15 discovery. R.K., 434 N.J. Super. at 133; see also R. 5:5-1 (setting forth
discovery in actions except for summary actions).
Nevertheless, in W.M., we explained that, because the plaintiff raised a
"credible claim of psychological parenthood," the matter should not have been
treated summarily. 467 N.J. Super. at 234. As it relates to the present case,
W.M. is informative because the reviewing court suggested that the
presentation of a credible claim for psychological parenthood should lead to
further proceedings by the court instead of a summary decision on the FD case.
Ibid.; see also N.J. Div. of Child Prot. & Permanency v. C.S., 432 N.J. Super.
224, 226 (App. Div. 2013) (explaining the parties were required to obtain
bonding evaluations considering best interests of child where the grandparents
sought custody of their grandchild under an FD docket).
Based upon the record before us, we conclude K.C. had standing to
claim he was H.C.'s psychological parent as he had stepped in to assume the
role of the legal parent who was unable or unwilling to undertake the
obligations of parenthood. The record on appeal reflects that he may have
satisfied all four prongs of the psychological parenthood analysis. The court
was required to consider his claims, allow for the parties to obtain expert
evaluations, and hold a hearing as to exceptional circumstances.
A-1907-22 16 To the extent we have not addressed K.C.'s remaining arguments, we are
satisfied they are without sufficient merit to warrant further discussion in a
written opinion. R. 2:11-3(e)(1)(E).
We vacate and remand for further proceedings consistent with this
opinion. We express no opinion as to the ultimate outcome.
Vacated and remanded. We do not retain jurisdiction.
A-1907-22 17