RABONE GOOLSARRAN & JAIPERSAUD GOOLSARRAN v. ROBERT RUSHEFSKY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1084-08T31084-08T3

RABONE GOOLSARRAN &

JAIPERSAUD GOOLSARRAN,

Plaintiffs-Respondents,

v.

ROBERT RUSHEFSKY,

Defendant-Appellant.

_________________________________

 

Submitted July 14, 2009 - Decided

Before Judges Grall and Gilroy.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Middlesex County, Docket No. FD-12-1802-08C.

Law Offices of Paone & Zaleski, attorneys

for appellant (John P. Paone, Jr., of counsel; Mr. Paone and Megan S. Murray, on the briefs).

Law Offices of Michael A. Nelson, attorneys

for respondents (Michael A. Nelson, on

the brief).

PER CURIAM

Plaintiffs are the parents of defendant's deceased wife, Ramona, and they are his daughter's maternal grandparents. He appeals from an order of October 9, 2008 granting plaintiffs visitation with his daughter in accordance with a schedule to be proposed by him. After defendant filed the notice of appeal, the trial judge denied his application for a stay, and the parties subsequently entered a consent order for visitation, without prejudice to this appeal. Their agreement, stated generally, provides for visitation one weekend each month from 9:00 a.m. on Saturday until 6:00 p.m. on Sunday.

Defendant and Ramona married in September 2003, and their only child was born in August 2005. Within three weeks of the birth, Ramona had a seizure caused by a previously undiagnosed, cancerous brain tumor. After undergoing surgery and a course of chemotherapy, Ramona died in March 2008.

The relationship between plaintiffs and defendant was strained from the outset. They first met at a Thanksgiving dinner in 2002 hosted by plaintiffs. According to defendant, Ramona delayed introducing him to her parents because they were not pleased with her decision to live with defendant or the fact that he and Ramona were not of the same race. Defendant did not feel welcome in their home, and because Ramona told him that he would not like the food her mother would serve, he had a soda while the family ate.

Defendant went with Ramona to plaintiffs' home three times before he and Ramona married, and he could recall only one conversation with Ramona's father. Ramona's father's account of his relationship with defendant was not materially different than defendant's description; in his view the two men never developed a relationship. Each of the them blamed the tension on the other. By May of 2003, Ramona and defendant, who were attending counseling together, decided not to visit with her parents.

Nonetheless, Ramona's mother attended the wedding in September 2003, and she gave defendant and Ramona a wedding gift. Ramona's father, who was not invited, did not attend. Although Ramona visited her mother on occasion after the wedding, defendant had no contact with her parents. In January 2005, Ramona sent a birthday card to her father and, through that card, let her father know that she was expecting a child.

Ramona's mother came to the hospital after her granddaughter was born in August 2005. When Ramona became ill, her mother cared for the baby and her daughter while defendant was at work, and she did things such as laundry and cooking to maintain the household. Defendant acknowledged that Ramona's mother was very helpful, but he explained that he came to feel like a stranger in his home because his mother-in-law was assuming control. Whether as a consequence of defendant's discomfort or Ramona's belief that he was seeing someone else, defendant and Ramona quarreled. In June 2006 they separated, and from that point forward Ramona's mother or another of her relatives stayed with her.

After defendant left the marital residence, he and Ramona shared custody equally on alternating weeks. While the child was with Ramona, her mother assumed responsibility for the child's care when Ramona could not. She bathed, fed and played with her granddaughter.

When Ramona's condition worsened, she and the child went to her mother's home. Ramona and defendant continued to alternate custody on a weekly basis until Ramona's death in March 2008. On the day of Ramona's death, defendant and his parents picked up the child from Ramona's parents' home.

After Ramona's funeral, her mother and defendant attempted to arrange for the child to see her grandmother and visiting relatives, but a misunderstanding about the scheduled day led to a disagreement that they were unable to resolve, causing additional hard feelings between defendant and Ramona's mother. Defendant told his mother-in-law that she would have to take him to court. By the time of the trial in September 2008, defendant acknowledged that he did not want Ramona's parents to see their granddaughter.

The trial judge found that Ramona's mother was the child's primary caregiver during her mother's parenting time after defendant left the marital residence, a period that commenced in June 2006 and ended in March 2008. Based on the role the grandmother had played in the child's life during her mother's illness and the death of the child's mother, the judge concluded that severance of the child's ties with her grandmother, other members of her mother's family, and their traditions would leave a void in the child's life.

We affirm this judgment because it "is based on findings of fact which are adequately supported by [the record]." R. 2:11-3(e)(1)(A). On review of a trial court's decision addressing parental rights, "factual findings 'should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Based upon the evidence summarized above, we cannot conclude that the judge's findings lack the requisite support in the record.

Defendant contends that the trial judge misapplied the law, a matter on which a reviewing court owes no deference to the trial judge. Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). His claim is that the judge awarded visitation on an analysis of the best interests of the child without first determining that the child would be harmed by defendant's parental decision to deny visitation.

The relevant law is clear. An order compelling a parent to permit a child to visit a grandparent implicates the parent's fundamental "right to family autonomy and privacy." Moriarty v. Bradt, 177 N.J. 84, 116 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). 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 on the ground that it would be in the child's best interest. Id. at 115, 117. A grandparent must establish, by a preponderance of the evidence, "exceptional circumstances" warranting the interference. Id. at 114, 117. A grandparent may meet that burden by demonstrating that he or she has become a psychological parent to the child and stands in the shoes of a parent. Id. at 113-16, 116 n.3; see, e.g., V.C. v. M.J.B., 163 N.J. 200, 221-28 (2000) (discussing the significance of the role played by a parent's partner), cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000). Or, a grandparent may satisfy the burden and entitlement to an order "forc[ing] grandparent visitation over the wishes of a fit parent" by showing that the "visitation is necessary to avoid harm to the child." Moriarty, supra, 177 N.J. at 115, 117.

Moriarty provides guidance for assessing the adequacy of the evidence of potential harm. Id. at 115-18. The "evidence can be expert or factual." Id. at 117. "[T]he termination of a long-standing relationship between the grandparents and the child, with expert testimony assessing the effect of those circumstances, [can] form the basis for a finding of harm." Ibid. And, grandparents also "may rely on the death of a parent" to establish the harm. Ibid. Thus, "harm of the type recognized in Moriarty generally rests on the existence of an unusually close relationship between the grandparent and the child, or on traumatic circumstances such as a parent's death." Daniels v. Daniels, 381 N.J. Super. 286, 294 (App. Div. 2005).

While the judge's finding of the requisite harm might have been articulated with greater clarity, that determination is implicit in the judge's decision. The judge found both an unusually close relationship between grandmother and granddaughter, based upon the grandmother's primary caretaking role in the face of her daughter's worsening health and impending death, and the traumatic circumstance of the death of this child's mother. Thus, although the judge did not specifically reference the constitutionally required showing of harm, the judge made the requisite factual findings based on an adequate record.

Furthermore, on this record, if the judge had found an "exceptional circumstance" justifying application of the best interests standard on the ground of the grandmother having stood in the shoes of a parent during her daughter's long illness, we could not conclude that judge was so "wide of the mark" that a mistake was made and an injustice done. New Jersey Div. of Youth and Family Services v. M.M., 189 N.J. 261, 279 (2007); Moriarty, supra, 177 N.J. at 113-16, 116 n.3. This grandmother-granddaughter relationship was of a different quality than one of "long-standing" with importance to the child that could not be assessed without the assistance of an expert. The relationship was more akin to one between a child and a person fulfilling the role of a parent who lacked the capacity to provide the care the young child needed. See V.C., supra, 163 N.J. at 221-28 (discussing the significance of the role played by a parent's partner).

For all of the foregoing reasons, we reject defendant's request to intervene on the ground that the trial court misapplied the law.

Defendant's alternative argument is that the trial court failed to identify a specific harm that would befall the child if she were prevented from having a relationship with her grandparents. Defendant's reliance on Mizrahi v. Cannon, 375 N.J. Super. 221, 223-25 (App. Div. 2005), a case in which the paternal grandparents sought visitation with the child of the deceased mother is wholly misplaced. Those grandparents had seen the child on a basis that is, at best, characterized as sporadic visits. Ibid. In this case, the grandmother sought an opportunity to continue a relationship with a child for whom she had cared when the child was living with her mother.

Defendant also claims that the evidence, when compared with the evidence in Moriarty, favors the denial of grandparent visitation in this case. The children whose interests were at issue in Moriarty were teenagers. 177 N.J. at 88. Defendant contrasts the circumstance of his daughter with that of those children and observes that "[his child] is only three (3) years old and her relationship with the [maternal grandparents] consisted of alternate week visits with them over a period of only about two and a half (2 1/2) years" not one of "long-standing relationship" like the teenagers in Moriarty had with the grandparents. Defendant also notes that in Moriarty there was evidence that the children were distraught due to their mother's death and observes that there is no evidence his daughter was "upset or distressed by her mother's passing." These arguments do not convince us that the trial judge erred. The absence of testimony about a toddler's grief and expert testimony about the likely harm did not preclude the trial judge from drawing what is a natural inference, consistent with logic and common sense, arising from the evidence this child would suffer if her ties with the grandmother who cared for her and her mother during most of the child's life were severed upon her mother's death.

Affirmed.

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A-1084-08T3

September 29, 2009