A.P. v. K.P.

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2566-16T4

A.P. and G.P.,1

Plaintiffs-Respondents,

K.P. and J.F.,

Defendants-Appellants.
_____________________________

Argued April 18, 2018 – Decided May 10, 2018

Before Judges Alvarez and Geiger.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Camden County,
Docket No. FD-04-1433-16.

Michael Confusione argued the cause for
appellants (Hegge & Confusione, LLC,
attorneys; Michael Confusione, of counsel and
on the brief).

Michael A. Weinberg argued the cause for
respondents (Archer & Greiner, attorneys;
Michael A. Weinberg, of counsel; Jennie A.
Owens, on the brief).

PER CURIAM

1
We use initials to protect the identity of the child and the
parties' privacy interests.
Defendants K.P. and J.F. (the parents) appeal from a February

17, 2017 order awarding plaintiffs A.P. and G.P. (the maternal

grandparents) unsupervised grandparent visitation and therapy

sessions with their grandson, A.F., despite the objections lodged

by defendants. After a review of the contentions in light of the

record and applicable legal principles, we reverse.

We glean the following facts from the record. Plaintiffs are

the maternal grandparents of the minor child, A.F., who was born

in September 2009. Defendants are A.F.'s parents. The maternal

grandparents initially filed an application for grandparent

visitation in March 2016, while the child was in the custody of

his paternal grandparents, G.P. and J.P. The paternal grandparents

were granted temporary custody of the child on November 23, 2015,

as the result of an investigation by the Division of Child

Protection and Permanency (DCPP) of allegations the parents had

neglect A.F.

On March 30, 2016, the maternal grandparents applied for

grandparent visitation with A.F. The parents were not parties to

that proceeding. The DCPP proceeding was scheduled for a hearing

the following day. On March 31, 2016, the trial court granted the

maternal grandparents visitation with the child for a minimum of

three hours per week, with the schedule of the visits "to be worked

2 A-2566-16T4
out" between the maternal and paternal grandparents.2 There is no

indication in the record that the parents received notice of the

grandparent visitation application. We note that the application

was considered on the day after it was filed. Moreover, there is

no indication that the court conducted a grandparent visitation

hearing under
N.J.S.A. 9:2-7.1 or Moriarty v. Bradt,
177 N.J. 84

(2003) and its progeny.

The paternal grandparents moved to vacate the March 31, 2016

order pursuant to Rule 4:50-1, contending they had not received

notice of the maternal grandparents' application. In her

supporting certification, the paternal grandmother raised the

following concerns. A.F. "is diagnosed with autism, suffers from

anxiety and autism-related food aversion, and is extremely

sensitive to changes in his schedule." Significant efforts have

been expended to get A.F. to eat properly and attend school

regularly. A.F. is seen by multiple health providers and

participates in several after-school programs until nearly 5:00

p.m. each week day.

The paternal grandmother also alleged the maternal

grandparents engaged in "a campaign to have [A.F.'s parents]

2
The record does not include a transcript of either the DCPP
proceeding or the grandparent visitation proceeding conducted on
March 31, 2016.

3 A-2566-16T4
evicted from the condo in which they were residing, despite the

fact that [A.F.'s parents] are going through an extremely difficult

time in their lives as they seek to make the adjustments necessary

to have [A.F.] returned to their care." She further alleged the

maternal grandparents sought custody "in an effort to use their

custody application as blackmail to have [A.F.'s parents] removed

from the condo." She asserts the maternal grandparents were

willing to "drop the custody case" if the parents vacated the

residence. The paternal grandmother parent also stated:

[W]e have attempted to set up some larger
family visits in the past, where [A.F.] can
see his parents and both sets of grandparents;
however, the [maternal grandparents] viewed
these visits as an opportunity to lambast
[A.F.'s parents] for their failures in front
of [A.F.], who is already a fragile child. If
the [maternal grandparents] cannot even
refrain from harassing [A.F.'s parents] during
this trying time, in [A.F.'s] presence, then
it is simply hard for us to imagine how court-
ordered visitation with [the maternal
grandparents] would further [A.F.'s] best
interests.

The maternal grandparents moved to enforce the March 31, 2016

order. In her supporting certification, A.P. stated the maternal

grandparents were not given notice of the hearing in which the

paternal grandparents were awarded custody of A.F. in the DCPP

proceeding. A.P. further claimed the purported paternal

grandfather was not J.F.'s biological father or A.F.'s biological

4 A-2566-16T4
grandfather. A.P. also claimed the paternal grandparents

continued to violate the March 31, 2016 order by refusing to allow

plaintiffs to exercise the court-ordered three hours per week

visitation with A.F.

The parents cross-moved in opposition to maternal grandparent

visitation. In their supporting certification, the parents joined

in the objections raised by the paternal grandparents. They

further stated:

However, we remain open to making efforts
to routinely schedule informal visits where
[A.F.] can meet with us, as well as both sets
of grandparents. At this time, however, out
of concern for [A.F.'s] best interests, we
[r]espectfully [r]equest that this [c]ourt not
affirmatively grant [the maternal
grandparents] the right to such visitation by
way of court order.

Custody of A.F. was returned to his parents in the DCPP

proceeding. In light of this change in custody, on August 16,

2016, the trial court dismissed the applications filed by both

sets of grandparents "without prejudice as moot due to the change

of custody arrangement," and vacated the March 31, 2016 order.

The trial court further ordered: "[K.P.] shall make reasonable and

good faith efforts to renew her and [J.F.'s] relationship with the

maternal grandparents and visitation between the maternal

grandparents and the child [A.F.]."

5 A-2566-16T4
The DCPP and grandparent visitation matters returned to court

on October 27, 2016. Although they had not filed a new complaint

or motion for grandparent visitation, the maternal grandparents

again sought visitation with A.F. K.P. and J.F. were present in

court without counsel as to the grandparent visitation case. After

dealing with certain pretrial issues in the DCPP proceeding, the

trial court addressed maternal grandparent visitation. The Deputy

Attorney General stated K.P. had a very difficult relationship

with her family. J.F. objected to visitation by the maternal

grandparents. When the court asked why, J.F. stated: "Because of

everything that's going on. It's -- They don't even attempt to

call us. We'll call them, they don't return the calls so --."

K.P. added the maternal grandparents were "more interested in

[going to] court" than talking to them like adults. K.P. described

the maternal grandparents as "toxic" and stated, "I don't want

them in my life." When asked to describe how they were "toxic,"

K.P. stated:

Because they are -- they're somewhat abusive
to me and right now this is a really tough
time for me and I can't have that over me
right now. I need to focus on being strong
for my son. And I -- I mean if you really
want me to get into it, I'll get into it, but
I don't want my son involved with them right
now.

6 A-2566-16T4
When asked by the trial court whether she would object to A.F.

being taken over "to say hello" to the maternal grandparents, K.P.

stated: "At this moment, yes." After being prodded by the court,

K.P. stated: "Okay, I'll given them a chance." The judge then said

he would draft an order indicating A.F.'s father "agrees to

communicate with mom's parents" to "see if he can develop some

kind of relationship so the child . . . knows [he] has four

grandparents and not just two grandparents," but if "there's any

toxic comments or statements" A.F.'s father can "stop the

relationship." The judge expected A.F.'s father "to make a good

faith attempt and see what happens."

The October 27, 2016 order prepared by the court, which stated

it was "with the consent of the parties," provided:

1. Plaintiffs' request for visitation
with the minor child, [A.F.] . . . and is
hereby GRANTED.

2. Judge orders [J.F.] and [K.P.] to
make reasonable and good faith attempts to
build positive relationships with the maternal
grandparents, [A.P. and G.P.].

3. Biological father, [J.F.] agrees to
communicate with [the maternal grandparents]
for good faith attempt for reasonable
visitation with the aforementioned minor
child. If a toxic relationship is fostered
between the biological parents and the
maternal grandparents. Biological parents may
end all visitation between the minor child and
the maternal grandparents.

7 A-2566-16T4
4. All provisions in the Court's order
dated October 27, 2016 (sic) remain in full
force and effect.

In December 2016, the maternal grandparents moved to enforce

the August 16, 2016 and October 27, 2016 orders, set a specific

schedule for grandparent visitation, and for counsel fees and

costs.

On January 4, 2017, the trial court entered an order

terminating the DCPP proceeding because the child had returned

home, conditions had been remediated, and physical and legal

custody was with the parents.

On February 17, 2017, the trial court conducted a testimonial

hearing. A.F.'s mother, father, and paternal grandmother

testified. The maternal grandparents did not testify, present any

witnesses, or introduce any other evidence. No expert testimony

was presented, and no expert reports were admitted in evidence.

The judge considered it an application by the maternal grandparents

to enforce the August 16, 2016 order, and indicated the issue was

whether it was not in the child's best interest to have grandparent

visitation.

The paternal grandmother testified A.F. was thriving since

being returned to his parent's care. She said "change is very

hard" for A.F. She indicated the maternal grandparents do not

accept A.F.'s diagnosis of autism spectrum disorder. She testified

8 A-2566-16T4
that maternal grandparent visitation would be harmful to A.F.'s

best interests because "even the slightest change or stress can

make him progress backwards." She said A.F. had never asked about

his maternal grandparents during the period she had custody or

since his parents regained custody.

A.F.'s father testified regarding the history of turmoil with

the maternal grandparents. He said the maternal grandparents did

not accept or try to account for A.F.'s special needs as an

autistic child.

A.F.'s mother testified the maternal grandparents had limited

unsupervised contact with A.F. She said her parents encouraged

her to leave J.F., which she considered to be their goal. She

felt they were trying to drive a wedge between her and J.F.,

creating an unhealthy environment for A.F., which she feared would

affect him. She also testified her parents did not acknowledge

A.F. was autistic or respect his special needs. She expressed

concern that A.F. would end up being treated the same as she was

by her parents, which she described as a rough, emotional

childhood.

The judge described the parents' reasons for excluding the

maternal grandparents from visitation as being "just wrong." While

recognizing the Supreme Court's holding requiring trial courts to

consider the fundamental rights of the parents to make decisions,

9 A-2566-16T4
the judge concluded: "But that's not this case. This case involves

grandparents who seem to have a good faith desire to work with

this child along with the parent." The judge further stated that

what is "important here is the fundamental rights of this child."

The judge then indicated "the issue should always be what's in the

best interest of this child." The judge concluded A.F. had a

relationship with the maternal grandparents and "we need to get

them closer together."

The judge expressed the sentiment that a child with A.F.'s

"history" needs "to take advantage of the extended family."

Notably, the judge did not find the denial of grandparent

visitation will result in harm to the child. The order entered

by the trial court stated:

[T]he Court finds that visitation with the
[p]laintiff maternal grandparents is in the
Child's Best Interest. However, the Court
recognizes that at the present time there is
a significant strain in the relationship
between the [p]laintiff maternal grandparents
and the [d]efendant parents. Therefore, the
Court Orders the parties strictly adhere to
the following visitation provisions:

A. The Parties shall arrange for
reunification therapy for the minor child
[A.F.]. The therapist shall be covered by the
child's Health Insurance and any co-pays or
uninsured costs shall be paid for by the
[p]laintiff grandparents. Counsel for the
Parties will contact Chambers on Friday,
February 24, 2017 at 1:30 for a conference
updating on the progress of setting up the

10 A-2566-16T4
therapy sessions. The therapist shall conduct
individual therapy with the child, parents and
maternal grandparents. Furthermore, the
therapist shall facilitate joint therapy
between the child and the maternal
grandparents. The [p]laintiff [maternal]
grandparents shall have a minimum of two (2)
therapeutic visits with the child [A.F.]
within thirty (30) days of the date of this
Order.

B. At the recommendation of the child's
therapist, the Plaintiff grandparents shall
begin unsupervised visitation with [A.F.].
The Plaintiffs are entitled to a total of
eight (8) hours per month of visitation with
the child. Both Parties shall make reasonable
efforts in arranging the visits and the
grandparents are entitled to make-up
visitation if they do not receive a total of
eight (8) hours of visitation a month.
Additionally, both the parents and maternal
grandparents will ensure that each other is
up to date on contact information at all
times. In the future, the grandparents may
file a motion for additional visitation after
the successful implementation of the monthly
eight (8) hour visits and additional parenting
time is necessary in the Child's Best
Interest.

This appeal followed. The parents contend: "The family judge

misapplied governing New Jersey and federal law in ordering

grandparent visitation with the minor child over the objections

of the natural parent defendants."

II.

"Because of the family court's special jurisdiction and

expertise in family matters, appellate courts should accord

11 A-2566-16T4
deference to family court factfinding." Cesare v. Cesare,
154 N.J. 394, 413 (1998). However, the legal determinations of the

Family Part are not entitled to any special deference. In re

Forfeiture of Personal Weapons of F.M.,
225 N.J. 487, 506 (2016).

Questions of law are reviewed de novo. Ibid.

Notwithstanding our general deference to Family Part

decisions, "we are compelled to reverse when the court does not

apply the governing legal standards." Slawinski v. Nicholas,
448 N.J. Super. 25, 32 (App. Div. 2016) (citing Gotlib v. Gotlib,
399 N.J. Super. 295, 309 (App. Div. 2008)).

By the time the trial court entered the February 17, 2017

order, defendants had regained full legal and physical custody of

A.F. Accordingly, the well-settled governing legal standard for

grandparent visitation applies. Pursuant to
N.J.S.A. 9:2-7.1, a

grandparent may seek an order for visitation notwithstanding the

objection of the child's parents.
N.J.S.A. 9:2-7.1 requires the

grandparents to prove by a preponderance of the evidence that the

proposed grandparent visitation is in the best interests of the

child, considering the following factors:

(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;

12 A-2566-16T4
(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.

Because of a parent's fundamental interest to direct the

care, control, and custody of their child, the petitioning

grandparent is required to make a threshold showing before the

trial court applies a best interests standard. Moriarty,
177 N.J.

at 114-15. As we discussed in Slawinski:

We recognize that a parent's fundamental
right to raise a child as he or she sees fit
encompasses the authority to determine
visitation by third parties, including
grandparents. Yet, that autonomy gives way
to the need to protect the child from harm.
Thus, grandparents seeking visitation . . .
must prove by a preponderance of the evidence
that denial of the visitation they seek would
result in harm to the child. If the court
agrees that the potential for harm has been
shown, the presumption in favor of parental
decision making will be deemed overcome.

13 A-2566-16T4
Still, proof of harm involves a greater
showing than simply the best interests of the
child. The harm to the grandchild must be a
particular identifiable harm, specific to the
child. It 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. By
contrast, missed opportunities for creating
happy memories do not suffice. Only after the
grandparent vaults the proof-of-harm
threshold will the court apply a best-
interests analysis to resolve disputes over
visitation details.

[448 N.J. Super. at 33-34 (citations
omitted).]

However, "nothing about a parent's right to autonomy warrants

allowing a parent to unilaterally modify or terminate a consent

order on grandparent visitation." Id. at 34. "Similarly, a

grandparent visitation order entered after an adjudication is

'subject to modification at any time on showing of changed

circumstances.'" Id. at 33 (quoting Mimkon v. Ford,
66 N.J. 426,

437-38 (1975)). In either of those circumstances, the parent

"must meet the burden of showing changed circumstances and that

the agreement is now not in the best interests of a child." Ibid.

(quoting Abouzahr v. Matera-Abouzahr,
361 N.J. Super. 135, 152

(App. Div. 2003)).

We do not consider the October 27, 2016 grandparent visitation

order to be a consent order for grandparent visitation. The order

was entered after the parents voiced repeated objection to the

14 A-2566-16T4
grandparent visitation and considerable prodding of the parents

who were then unrepresented. Moreover, the terms of the order

went considerably beyond what the parents had agreed to.

Additionally, the contact it allowed was limited, requiring only

that J.F. "agrees to communicate with [the maternal grandparents]

for good faith attempt for reasonable visitation." It did not set

a visitation schedule. It further stated: "If a toxic relationship

is fostered between the biological parents and the maternal

grandparents[,] [b]iological parents may end all visitation

between the minor child and the maternal grandparents."

Nor had there been a prior adjudication based on the governing

legal principles. At no point during the prior proceedings or the

February 17, 2017 testimonial hearing did the maternal

grandparents prove that the denial of visitation would result in

harm to A.F. Therefore, defendants were not required to show

changed circumstances.

Additionally, when the trial court conducted the testimonial

hearing, it applied a best interest standard rather than requiring

the maternal grandparents to meet the threshold of proving by a

preponderance of the evidence that denial of the visitation they

seek would result in harm to the child. Only then would the

presumption in favor of parental decision-making be overcome and

the best interest standard apply. Moriarty,
177 N.J. at 117.

15 A-2566-16T4
The trial court did not apply this governing legal standard.

Instead, the trial court ostensibly treated plaintiffs'

application as a motion to enforce the grandparent visitation

order and employed a best interest standard rather than requiring

plaintiffs to prove by a preponderance of the evidence that denial

of their grandparent visitation would result in harm to the child.

Accordingly, we are compelled to reverse and remand for further

proceedings in accordance with this opinion. On remand, the trial

court shall determine if a plenary hearing is necessary on the

threshold issue of whether the denial of maternal grandparent

visitation would result in harm to the child.

Reversed and remanded. We do not retain jurisdiction.

16 A-2566-16T4

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