F.A.T. VS. C.T.D. (FD-20-1529-19, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-5511-18
F.A.T.,
Plaintiff-Respondent,
v.
C.T.D.,
Defendant-Appellant.
________________________
Submitted November 5, 2020 – Decided March 19, 2021
Before Judges Sumners and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Union County, Docket No. FD-20-
1529-19.
Weinberger Divorce & Family Law Group, LLC,
attorneys for appellant (Richard A. Outhwaite, on the
brief).
Respondent has not filed a brief.
PER CURIAM
Defendant C.T.D.1 appeals from a July 17, 2019 order of the Family Part
that granted plaintiff F.A.T.'s request for visitation with her grandson, R.D. On
appeal, defendant argues that: (1) the trial judge erred in awarding plaintiff
visitation under the Grandparent Visitation Statute (GVS), N.J.S.A. 9:2-7.1; and
(2) the matter should be remanded for a plenary hearing. Because the trial
judge's ruling in this case did not make any findings of fact or conclusions of
law referencing the GVS, we remand the matter for a plenary hearing consistent
with this opinion.
We discern the following facts from the limited record before us. Plaintiff
is the maternal grandmother of ten-year-old R.D. On May 28, 2019, plaintiff
filed a verified pro se complaint in the Chancery Division, Family Part seeking
visitation with her grandson. 2 Plaintiff alleged that she had not seen her
"grandson in over a year." Plaintiff further contended that she made several
unsuccessful attempts to communicate with defendant and the paternal
grandmother to arrange visits with R.D.
1
We use initials to protect the privacy of the parties. R. 1:38-3(d)(3) and (13).
2
J.F., R.D.'s mother, was also listed as a defendant but did not participate in the
underlying matter.
A-5511-18
2
The matter came before the Family Part on July 17, 2019. Both plaintiff
and defendant appeared pro se. Defendant testified that plaintiff had
"disappeared for multiple years" and "not kept in contact" with R.D. Plaintiff
countered that she was "very interested" in seeing her grandson and reached out
on special occasions such as birthdays and holidays. The trial judge made a
brief inquiry as to plaintiff's residency status and occupation. The judge
indicated that, because plaintiff was supervising J.F.'s visitation, it would be
unreasonable that she would be precluded from visiting R.D. The judge
ultimately concluded that plaintiff has "the right to have some communication
and contact with" R.D.
That same day, the trial judge issued an accompanying written order
which sets forth, in part, that:
Plaintiff's application for visitation with grandchild
[R.D.] . . . is granted in part. Commencing on Saturday,
July 27, 2019, plaintiff shall have visitation with the
child on alternate Saturdays from 12:00[p.m.] to
5:00[p.m.]. Plaintiff shall pick up and drop off the child
curbside at defendant [C.T.D.'s] residence. The
visitation schedule shall be subject to the child's hockey
schedule, and if the child's activity conflicts with the
visitation, the parties shall adjust the hours or the days
if necessary. Defendant [J.F.] is prohibited from being
present during plaintiff's visitation.
A-5511-18
3
Neither the judge's oral ruling nor the written order applied, or even mentioned,
the criteria set forth in the GVS. This appeal ensued.
Our standard of review is well-established. We generally accord
deference to the Family Part's fact-finding because of the court's "special
expertise" in family matters and "superior ability to gauge the credibility of the
witnesses who testify before it . . . ." N.J. Div. of Youth & Fam. Servs. v. F.M.,
211 N.J. 420, 448 (2012) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)).
Under the GVS, "[a] grandparent . . . of a child residing in [New Jersey]
may make application before the Superior Court . . . for an order for visitation.
It shall be the burden of the applicant to prove . . . that the granting of visitation
is in the best interests of the child." N.J.S.A. 9:2-7.1(a). The GVS represents an
infringement on the fundamental right to parent, and the only interest that
permits the State "to overcome the presumption in favor of a parent's decision
and to force grandparent visitation over the wishes of a fit parent is the
avoidance of harm to the child." Moriarty v. Bradt, 177 N.J. 84, 115 (2003).
Therefore, to obtain visitation under the GVS, the grandparents must establish,
"by a preponderance of the evidence[,] that [such] visitation is necessary to
avoid harm to the child." Id. at 117.
A-5511-18
4
Moreover, the court may not approve a visitation schedule unless the
grandparent first establishes the potential for harm to the child and overcomes
the presumption in favor of parental decision-making. Rente v. Rente, 390 N.J.
Super. 487, 493-94 (App. Div. 2007). The court must determine if visitation is
in the child's best interests, based on the factors enumerated in the GVS. Ibid.These factors include:
(1) The relationship between the child and the
applicant;
(2) The relationship between each of the child's parents
or the person with whom the child is residing and the
applicant;
(3) The time which has elapsed since the child last had
contact with the applicant;
(4) The effect that such visitation will have on the
relationship between the child and the child's parents or
the person with whom the child is residing;
(5) If the parents are divorced or separated, the time
sharing arrangement which exists between the parents
with regard to the child;
(6) The good faith of the applicant in filing the
application;
(7) Any history of physical, emotional or sexual abuse
or neglect by the applicant; and
(8) Any other factor relevant to the best interests of the
child.
A-5511-18
5
[N.J.S.A. 9:2-7.1(b).]
Rule 1:7-4(a) requires that trial judges "by an opinion or memorandum
decision, either written or oral, find the facts and state its conclusions of law
thereon . . . on every motion decided by a written order that is appealable as of
right . . . ." See Shulas v. Estabrook, 385 N.J. Super. 91, 96 (App. Div. 2006)
(requiring an adequate explanation of basis for the court's action).
Unfortunately, our review of the trial judge's order is hampered because
she did not make factual findings or reach conclusions of law, nor did she
address the factors set forth in the GVS. The scant factual findings do not meet
the statute's requirements. See Salch v. Salch, 240 N.J. Super. 441, 443 (App.
Div. 1990) ("Meaningful appellate review is inhibited unless the judge sets forth
the reasons for his or her opinion."). Therefore, we are constrained to vacate
the judge's order and remand for a plenary hearing at which the parties can
present evidence directed at the standards set forth in the GVS. At the
conclusion of the hearing, the judge shall articulate whether the best interests of
the child favor visitation with F.A.T. in accordance with the statute.
Vacated and remanded for a plenary hearing consistent with this opinion.
We do not retain jurisdiction.
A-5511-18
6