K.B. VS. B.H. AND C.D. (FD-04-1159-19, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5015-18T2

K.B., 1

Plaintiff-Appellant,

v.

B.H. and C.D.,

Defendants-Respondents.
__________________________

Submitted March 17, 2020 – Decided April 17, 2020

Before Judges Hoffman and Firko.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Camden County,
Docket No. FD-04-1159-19.

John P. Reilly, Jr., attorney for appellant.

Respondents have not filed briefs.

PER CURIAM

1
We use initials to protect the identity of the child and the parties' privacy
interests. R. 1:38-3(d)(13).
 Plaintiff K.B. appeals from a June 5, 2019 Family Part order awarding her

limited grandparent visitation with her grandson, T.H. After a review of the

contentions in light of the record and applicable legal principles, we reverse.

I.

We glean the following facts from the record. Plaintiff is the paternal

grandmother of the minor child, T.H., who was born in April 2007 . Defendants

B.H. (father) and C.D. (mother), are T.H.'s parents. After T.H. was born, the

child lived with defendants until 2010, when they separated. During that time,

plaintiff provided food, diapers, clothing, and other necessities for the child. I n

addition to physical items, plaintiff provided childcare and purchased a crib and

toys for T.H., which stayed at her home. Plaintiff also provided a bedroom in

her home for T.H.

In 2011, father moved into a new home with T.H. and his then girlfriend.

At this time, mother underwent substance abuse treatment at a crisis unit and

later at an in-patient facility, which lasted until 2012. In the meantime, father

married his girlfriend in August 2012 and had another child in July 2013.

According to plaintiff, she had keys to her son's home and frequently visited and

cared for T.H., prepared meals, and cared for T.H.'s dog.

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 After father's baby was born in July 2013, plaintiff claimed that her

visitation with T.H. increased, and she took him to her home to accommodate

his parents' work schedules and the baby. According to plaintiff, T.H. was at

her home about 100 days per year. T.H. has special education needs and plaintiff

is a retired special education teacher. She paid for his tutoring sessions, picked

him up from daycare, and tended to his special education needs, including

homework. Plaintiff also claimed she assisted in T.H.'s kindergarten class and

served as an aid at the school.

Between 2012 and 2014, the record shows there were multiple incidents

of domestic violence between father and his wife. Thereafter, in 2014, father

had an affair, his wife moved out, and his paramour moved in with him. Shortly

thereafter, the relationship between father and his paramour became volatile,

and led to domestic violence. Eventually, father's paramour moved out of his

home.

After mother became sober, she filed a complaint against father seeking

parenting time with T.H. On August 12, 2015, the Family Part judge awarded

defendants joint custody of T.H. and designated father as the parent of primary

residence and mother as the parent of alternate residence. The judge granted

mother three overnight days per week with T.H., and the third week of each

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month, but father refused to comply with the order. Consequently, mother had

no parenting time with T.H. between March 2016 and March 2017.

During this time, plaintiff continued to assist father by picking up T.H.

from daycare, ensuring his homework was completed, and taking T.H. to his

extracurricular activities. From 2016 through 2018, T.H. spent up to four nights

per week at plaintiff's home. She took T.H. to his doctor's appointments and

celebrated Jewish holidays with him.

On October 22, 2017, father punched plaintiff (his mother) in the face and

visitation between plaintiff and T.H. was suspended. Father took T.H. to work

with him until 9:30 p.m., and T.H. slept on a sofa. However, by November 2017,

father allowed plaintiff to take care of T.H. again.

Father was investigated by the Division of Child Protection and

Permanency and accused plaintiff of reporting him, which she denied.

Nonetheless, father told plaintiff she would no longer have access to T.H., and

he could no longer stay at her home.

Thereafter, plaintiff contacted mother in an effort to enforce the August

12, 2015 order and seek visitation with T.H. during mother's parenting time. In

response, mother filed a pro se application to enforce the 2015 order. On July

30, 2018, the judge held a hearing and entered an order providing: "Parties are

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to attend mediation. Plaintiff's request for enforcement of parenting time is

granted. Parenting time with mother shall be in accordance with the [August

12, 2015] order. Father's request for sole custody is denied . . . ."

The relationship between plaintiff and her son deteriorated. He terminated

all contact between plaintiff and T.H. In retaliation against plaintiff, father

refused to allow T.H. to attend camp or summer tutoring sessions, as he had

done in previous years.

On September 10 and October 13, 2018, father allowed plaintiff to have

visitation with T.H. for a total of six hours. Following the October 13, 2018

visit, father sent plaintiff a text message concerning her visitation going

forward:

The parties agree that [T.H.] may have limited contact
with paternal grandmother [plaintiff]. [Plaintiff] is
allowed to have dinner with [T.H.] one or two times per
month, no longer than three hours at a time. [Plaintiff]
is not allowed to pick up [T.H.] from school or his bus
stop. [Plaintiff] is not allowed any vacation time with
[T.H.]. [Plaintiff] is not allowed any overnights with
[T.H.]. [Plaintiff] is not allowed to have information
regarding [T.H.]'s medical, dental or school. [Plaintiff]
is not allowed to go to [T.H.]'s school for any reason
i.e. plays, dances, back to school night, graduations,
etc.

Thereafter, mother called plaintiff about a bill she received from an

attorney who appeared at the July 10, 2018 hearing. Mother advised plaintiff

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that unless she paid the bill, visitation with T.H. would cease. After plaintiff's

new counsel sent a letter to defendants in an effort to amicably resolve the

grandparent visitation issue, they threatened to "have plaintiff arrested." Despite

the cessation of grandparent visitation, T.H. contacted plaintiff by telephone

about how he was feeling and when he was sick. After learning about these

calls, mother blocked plaintiff's phone number, precluding T.H. from calling

her.

On November 20, 2018, plaintiff filed a complaint seeking grandparent

visitation. After the parties participated in a conference, parent education

seminar, and mediation, the matter was scheduled for trial. Plaintiff's counsel

requested that the trial be converted to a case management conference, but the

court denied the request and proceeded to commence the trial. Since no

responsive pleadings were filed and limited discovery was provided by

defendants, plaintiff's counsel made the strategic decision to withdraw the

complaint and not proceed to trial that day.

On May 7, 2019, plaintiff filed a new verified complaint seeking

grandparent visitation alleging:

The said minor child will suffer psychological, and
physical and/or emotional harm if plaintiff is not
permitted to exercise grandparent visitation with the
said minor child. This harm will come from termination

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 of a long standing supportive and loving relationship.
The child will also suffer the loss of the emotional
support of a primary caregiver and attachment figure;
the loss of a support person who gives the child
consistency and security during [ . . . ] d[]efendant,
[father's] many volatile relationships with various
female partners including incidents of domestic
violence and during the time the minor child's mother
was suffering from substance abuse. The child will also
suffer the loss of significant financial support from
plaintiff. The child will also suffer from potential
physical harm in that the plaintiff was the person who
took the child to his pediatrician, for his dental and
orthodontic appointments and the child has not had
dental or orthodontic treatment since [father] took him.
The child will also suffer the loss of the unique
companionship, culture and religion that the child was
exposed to with the [p]laintiff.

In her prayers for relief, plaintiff asserted that defendants be required to

file responsive pleadings to her complaint; the matter be scheduled for a case

management conference to address discovery under Rule 5:5-1(a); and that the

matter be assigned a complex track. On a pendente lite basis, plaintiff sought

grandparent visitation under the prior order of the court.

The judge conducted a grandparent visitation rights hearing on June 5,

2019. Plaintiff was represented by counsel at the hearing, and defendants

appeared pro se by telephone. Mother testified that the parents had a fifty-fifty

shared parenting plan, and she offered to allow plaintiff visitation during her

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parenting time. In addition, mother testified that plaintiff had a great

relationship with T.H. and that she took care of her grandchild.

Father testified that he would allow plaintiff limited grandparent visitation

twice per month for five hours at a time, and additional time for Jewish holidays.

Plaintiff's counsel opposed defendants' proffer as insufficient because no

weekend time was offered.

The judge found that plaintiff failed to establish a case for grandparent

visitation but stated:

So, the [c]ourt, having listened to the testimony of the
parents and the arguments of counsel as -- as well as
reviewed the pleadings, the [c]ourt finds that the
grandparent's complaint does not meet by a
preponderance of the evidence[,] the standard with
respect to grandparent's visitation. In a grandparent's
complaint seeking visitation, a grandparent must first
make a clear and specific allegation of concrete harm
to the child, and that's in Daniels [v.] Daniels, 381 N.J.
Super. 286 at 294 (App. Div. 2005). Such harm must be
significant enough to justify [s]tate intervention in the
parent child relationship. And that's at 293. A
grandparent seeking visitation must prove by a
preponderance of the evidence that denial of the
visitation they seek would result in harm to the child.
And that's in the Major case, 224 N.J. at 7, quoting
Moriarty, as [we] all know.

Substantively, it is a heavy burden, and that's in
Slawinski, 448 N.J. Super. at 34. Okay? The . . . harm
to the grandchild must be, quote, "a particular
identifiable harm specific to the child," and that's in

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 Mizrahi [v.] Cannon, 375 N.J. Super. 221 at 234 (App.
Div. 2005). Missed opportunities for creating, quote,
"happy memories," end quote, do not suffice. That's in
Mizrahi, 375 N.J. Super. at 234. Only after a
grandparent vaults the proof of harm threshold would
the [c]ourt begin the best interest analysis. When a
grandparent can't make a threshold showing, the
complaint should be dismissed. Okay?

So -- however, we've made progress. The [c]ourt is
willing, because the parents are willing, for the [c]ourt
to enter an order today that the grandmother can have
parenting time as indicated two times a month for at
least five hours. She can have the Jewish holidays and
she can coordinate with the parents, more specifically
probably the mother, to have additional time if mutually
agreed. I think that more than suffices in this particular
matter. The parents are to be commended for their
willingness to cooperate.

....

And for -- so that the child can have a continuing
relationship with [his] paternal grandmother. So, with
that, the [c]ourt will issue an order with that schedule
and certainly hopes that the parties will progress for the
interest of the child and there won't be the amount of
tension that there is. Okay? All right. So, the [c]ourt
will send the parties an order.

The judge's ruling was not memorialized in a written order. On appeal, plaintiff

argues that the judge erred by denying her request to require defendants to file

responsive pleadings, not assigning the matter to a complex track, and not

providing for an exchange of discovery or a case management conference.

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Plaintiff also appeals the limited grandparent visitation she was awarded based

upon the consent of defendants.

II.

Here, plaintiff is pursuing a claim for grandparent visitation under the

Grandparent Visitation Statute (GVS), N.J.S.A. 9:2-7.1. 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, a grandparent

must establish, by a preponderance of the evidence, that such visitation is

necessary to avoid harm to the child. Id. at 117.

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.

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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. Id. at

494. 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.

[N.J.S.A. 9:2-7.1(b).]

We begin by summarizing a trial judge's obligations in resolving motions

in family matters. It is well settled that following argument on a motion or

hearing, the judge must enter a written order setting forth the court's rulings on

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the motion. See R. 4:42-1(a) (made applicable to family actions by R. 5:1.1).

These "rules contemplate written orders, notwithstanding the fact that the

written order may be the memorialization of an oral order." Hamm v. City of

Clifton, 229 N.J. Super. 423, 427 (App. Div. 1988). The prompt issuance of an

order is obviously "necessary in any case where subsequent activity is bottomed

upon that order[.]" Stephenson v. Stephenson, 112 N.J. Super. 531, 533 (Ch.

Div. 1970).

Rule 1:7-4(a) also clearly states that in addition to entering an appropriate

written order, a trial judge "shall, 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 court's action). A judges' colloquy during a

motion hearing is not a substitute for the judge's obligation to articulate findings

of facts and conclusions of law. Pardo v. Dominguez, 382 N.J. Super. 489, 492

(App. Div. 2006) (rejecting "the suggestion that a judge's comment or question

in a colloquy can provide the reasoning for an opinion which requires findings

of fact and conclusions of law . . . .").

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 The mere recitation of a published case or a statutory citation does not

constitute adequate fact-finding. Instead, the judge's decision must clearly

demonstrate that the litigants have been heard and their arguments considered.

While a judge need not author a lengthy written opinion, or deliver an hour-long

oral ruling to meet this requirement in every case, he or she must always state

what facts form the basis of his or her decision, and then weigh and evaluate

those facts in light of the governing law "to reach whatever conclusion may

logically flow from" those facts. Slutsky v. Slutsky, 451 N.J. Super. 332, 357

(App. Div. 2017). Because justice requires no less, "[a]ll conclusions must be

supported." Ibid.; see also Dorfman v. Dorfman, 315 N.J. Super. 511, 518 (App.

Div. 1998) (holding that merely stating a conclusion that a litigant in a post-

judgment matrimonial proceeding has not "shown . . . a substantial change of

circumstances warranting a modification" of a prior order is "insufficient under

[Rule] 1:7-4(a), [which] require[s] findings of fact and reasons given for

conclusions reached.").

In sum, "[m]eaningful appellate review is inhibited unless the judge sets

forth the reasons for his or her opinion." Strahan v. Strahan, 402 N.J. Super.

298, 310 (App. Div. 2008) (quoting Salch v. Salch, 240 N.J. Super. 441, 443

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(App. Div. 1990)). Unfortunately, the trial court's rulings in this case did not

satisfy these requirements.

As stated previously, the Family Part judge found plaintiff's grandparent

visitation complaint did not meet the preponderance of the evidence standard,

but allowed the limited visitation suggested by defendants. Based upon our

careful review of the record, we note that the judge engaged in colloquy with

the parties, but did not permit adequate cross-examination. Moreover, the judge

made no finding that such visitation would be adverse to the best interests of

T.H. The judge also did not assess the statutory factors under the GVS and did

not consider whether plaintiff established a reasonable probability of success on

the merits of her claim for visitation under the GVS.

Furthermore, the judge permitted visitation based solely upon defendants'

proposal without analyzing the effects upon T.H. In Slawinski v. Nichols, 448

N.J. Super. 25, 32 (App. Div. 2016), we stated that "[a]bsent fraud or

unconscionability, [appellate] courts will enforce family-related agreements as

they would any contractual agreement." In this case, however, we reverse the

Family Part judge because plaintiff established by a preponderance of the

evidence that she is entitled to grandparent visitation based upon the

overwhelming evidence of her close and consistent contact with T.H. since his

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birth, and her showing that cessation of visitation would lead to a specified harm

to the child. See Rente, 390 N.J. Super. at 494-95.

Defendants did not refute plaintiff's contention that she had been a

caretaker for T.H. in the past. And, defendants presented no evidence that

grandparent visitation by plaintiff would interfere with their custodial rights.

We are convinced that plaintiff has established, by a preponderance of the

evidence, that significant harm to T.H. will result if she is denied grandparent

visitation. Plaintiff articulated the nurturing and emotional role she has in T.H. 's

life, not to mention the attention she uniquely offers for his special education

needs, and the stable home environment she has provided to him. We therefore

conclude the judge erred by not requiring defendants to file responsive pleadings

to plaintiff's complaint and not scheduling a case management conference to

address discovery under Rule 5:5-1(a) or assigning the matter to a complex

track. Plaintiff is entitled to a plenary consideration of her claims.

On remand, the judge shall consider whether an expert should be

appointed to address the grandparent visitation issue, and whether or not a

guardian ad litem should be appointed for T.H., pursuant to Rule 5:8B, as may

be required consistent with the goals of the GVS.

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 In summary, we reverse and remand to the Family Part judge to do the

following:

(1) direct defendants to file responsive pleadings to
plaintiff's complaint;

(2) conduct a case management conference within
thirty days and address discovery issues pursuant to
Rule 5:5-1(a);

(3) assign the matter to a complex track;

(4) consider the appointment of an expert and guardian
ad litem; and

(5) address pendente lite grandparent visitation for
plaintiff.

Reversed and remanded to the Family Part for further proceedings in

conformity with this opinion. We do not retain jurisdiction.

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