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NOT FOR PUBLICATION WITHOUT THE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-4699-18T1
D.S.,
Plaintiff-Appellant,
v.
P.G. and L.S.,
Defendants-Respondents.
__________________________
Submitted September 29, 2020 – Decided January 08, 2021
Before Judges Messano, Hoffman and Suter.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Burlington County,
Docket No. FD-03-1278-16.
Maleski, Eisenhut & Zielinski, LLC, attorneys for
appellant (Adam M. Eisenhut, of counsel and on the
briefs; Neil Brazer, on the briefs).
Caruso Smith Picini, PC, attorneys for respondent P.G.
(Marcia DePolo, on the brief).
PER CURIAM
This appeal concerns a long-running family dispute regarding the custody
of B.G.1 (Bob), the twelve-year-old son of defendants, L.S. (Mom) and P.G.
(Dad), and the grandson of plaintiff D.S., Bob's maternal grandmother (MGM).
Because we are satisfied the appeal is both interlocutory and now moot, we
dismiss the appeal and remand for further proceedings.
I.
We derive the following facts from the record. In 2013, the Mercer
County Family Part entered an order granting defendants joint legal custody of
Bob, with Mom designated as the parent of primary residence (PPR). At that
time, Dad lived in Texas, and Mom lived in Mercer County with her mother,
MGM.
On July 23, 2015, MGM obtained an order requiring defendants to show cause
why the court should not grant her custody of Bob, based upon allegations of
escalating alcohol abuse by Mom. The court entered an interim order granting MGM
physical custody of Bob and requiring that Mom's "parenting time . . . shall be
supervised." After the Division of Child Protection and Permanency (the Division)
initiated proceedings upon learning of Mom's alcohol abuse, on October 28, 2015,
1
We use initials and pseudonyms to identify the parties and the minor child, in
accordance with Rule 1:38-3(d)(3,12 and 13).
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the court ordered that MGM, Mom, and Dad "shall temporarily" share joint legal
custody of Bob and that MGM "shall have sole physical custody until further notice
of the court."
The matter was subsequently transferred to the Burlington County Family
Part.2 On July 13, 2016, the court entered an order providing, "Legal custody of the
child shall be shared jointly by all three parties, . . . . Physical custody of the child
shall remain with [MGM]." Various orders followed, amending the parenting time
and visitation rights of Mom and Dad, but maintaining the same custody
arrangement as set forth in the July 13, 2016 order.
In August 2018, Dad filed an emergent application, requesting the court
terminate MGM's custody of Bob and grant him residential custody, including
permission to relocate Bob to his home in Texas. In response, MGM filed a
motion to modify the prior custody order, seeking a new order that would find
that she "is a psychological parent of [Bob] and thus has co-equal rights" as
Mom and Dad. In January and March 2019, the motion judge held a plenary
hearing on the custody issues, including Dad's request for physical custody and
permission to relocate, as well as MGM's motion seeking a determination that
she had become a psychological parent of Bob. In addition to hearing the
2
The record does not reflect the reason for the venue change.
A-4699-18T1
3
testimony of the three parties and Mom's sister, the motion judge also personally
interviewed Bob.
On April 3, 2019, the motion judge rendered his decision orally and issued
an accompanying order. The judge found sufficient changed circumstances to alter
the prior custody order and granted joint legal custody to Mom and Dad, with Mom
as PPR. Additionally, the judge expressly ruled that MGM had not established she
had become a psychological parent of Bob and specifically provided that she no
longer shared joint legal custody of Bob. The judge's order provided MGM with
visitation "for two consecutive weeks in the summer" and permitted her to "initiate
a phone call or other electronic communication on a twice[-]weekly basis[.]" The
order further stated that this new custody arrangement would become effective April
27, 2019; in the interim, the order provided Mom "shall have unsupervised parenting
time" on the weekend of April 13, 2019.
Before this new custody arrangement went into effect, Mom relapsed in her
recovery. As a result, MGM filed an order to show cause, requesting a stay of the
April 3 order pending appeal. MGM certified Mom failed to pick up Bob for Mom's
parenting time and was now homeless, unemployed, and abusing alcohol again. At
a hearing on April 16, Mom was unable to provide the judge with her current address
or to adequately explain why she failed to pick up Bob on April 13. The hearing
A-4699-18T1
4
also revealed the Division opened a new investigation, after a caseworker reported
that Mom refused to provide an address for a residence assessment and sounded
drunk on the phone. At the conclusion of the hearing, the judge ruled:
Based on the testimony of [Mom], it's clear to the
[c]ourt that[,] at the present time, at the very least, she was
not able to present to the [c]ourt that she has the ability to
take care of the child. I did not hear anything about where
the child would stay if she . . . became the parent of
primary residence on April 27th, as I had previously
ordered.
The fact that [Mom] was not able to give an
adequate explanation or adequate testimony with regard to
what happened on Saturday, April 13th, with regard to the
parenting time that I had ordered[,] causes the [c]ourt great
concern, and also her testimony that she presented today
was quite disjointed.
The judge then entered an order staying his April 3 order, returning Bob to MGM's
custody, and reinstating joint legal custody of Bob among the three parties.
Shortly thereafter, MGM filed a motion for reconsideration of the judge's
April 3, 2019 decision. On May 10, 2019, the judge held a hearing on the
reconsideration motion and to further address MGM's order to show cause; in the
interim, he received relevant records submitted by the Division.
The motion judge ruled the issues generated by MGM 's order to show cause
warranted a new plenary hearing. The judge found the other issues raised by MGM
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in her motion for reconsideration, regarding the admissibility of evidence and other
alleged procedural errors, were rendered moot by his subsequent April 16 order. The
judge also denied reconsideration of his previous finding that MGM was not a
psychological parent for Bob.
This appeal followed, with MGM challenging the motion judge's adverse
finding on the psychological parent issue and his determination to schedule another
plenary hearing to further address the issue of Bob's custody. In November 2019,
we requested the motion judge to settle the record regarding whether he determined
certain pieces of evidence were admissible. On December 19, 2019, the judge
responded to our request.3
II.
Appellate review of a trial court's findings in a custody dispute is limited.
Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings
by the trial court are binding on appeal when supported by adequate, substantial,
credible evidence." Id. at 411-412 (citing Rova Farms Resort, Inc. v. Investors
Ins. Co., 65 N.J. 474, 484 (1974)). Furthermore, appellate courts afford
3
The trial judge issued an order clarifying that he deemed inadmissible against
Dad documents describing a 2014 marijuana arrest and a 2010 domestic violence
incident. The judge also clarified that he did receive in evidence certain
screenshots of texts sent by Mom to MGM in 2012, but noted that he did not
"give them much weight with regard to [his] ultimate decision[.]"
A-4699-18T1
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"substantial deference to the Family Part's findings of fact because of
that court's special expertise in family matters." Id. at 413. "Deference is
especially appropriate when the evidence is largely testimonial and involves
questions of credibility because, having heard the case, and seen and observed
the witnesses, the trial court has a better perspective than a reviewing court in
evaluating the veracity of witnesses." P.B. v. T.H., 370 N.J. Super. 586, 601
(App. Div. 2004) (citing Pascale v. Pascale, 113 N.J. 20, 33 (1988)). However,
appellate courts review issues of law de novo, even those that arise in the context
of a custody dispute. R.K. v. F.K., 437 N.J. Super. 58, 61 (App. Div. 2014).
New Jersey’s statutory scheme, the United States Constitution, and common
sense "afford a fit parent a superior right to custody of his or her child as against
third parties." Watkins v. Nelson, 163 N.J. 235, 245 (2000). Thus, "a presumption
of custody exists in favor of the parent." Id. at 246. Both parents have an equal right
to custody of their child. N.J.S.A. 9:2-4.
To modify a custody order, a party must first make out a prima facie showing
of changed circumstances. R.K. v. F.K., 437 N.J. Super. 58, 62 (App. Div. 2014).
If a genuine and substantial dispute over the requested change occurs, the court will
order a plenary hearing. Ibid; Rule 5:8-6. The court then considers the best interests
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of the child in deciding whether to order a change in custody. R.K., 437 N.J. Super.
at 58.
Unlike a child’s legal parents, grandparents have no inherent rights to custody
of a child. Watkins v. Nelson, 163 N.J. 235, 245 (2000). Likewise, a grandparent
or other third party granted custody via court-order does not bestow parental rights
upon that third party. Tortorice v. Vanartsdalen, 422 N.J. Super. 242, 251-252 (App.
Div. 2011). However, "[t]he right of parents to the care and custody of their children
is not absolute." V.C. v. M.J.B., 163 N.J. 200, 218 (2000). While there is a
presumption supporting a natural parent's "right to the care, custody, and control of
his or her child," this "presumption in favor of the parent will be overcome by 'a
showing of gross misconduct, unfitness, neglect, or "exceptional circumstances"
affecting the welfare of the child[.]'" K.A.F. v. D.L.M., 437 N.J. Super. 123, 131-
132 (App. Div. 2014)(quoting Watkins v. Nelson, 163 N.J. 235, 246
(2000)(alteration in original)). An exceptional circumstance that overrides the
presumption favoring the natural parent occurs when a third party has become a
child's "psychological parent," i.e. 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 (citing Sorentino v. Family & Children's Soc.
of Elizabeth, 72 N.J. 127, 132 (1976)).
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In order to be recognized as a psychological parent, the third party must file a
petition with the court. Lewis v. Harris, 188 N.J. 415, 450 n. 20 (2006). Upon this
petition, and after the court determines a third party is a child's psychological parent,
"he or she stands in parity with the legal parent." V.C., 163 N.J. at 227-228 (citing
Zack v. Fiebert, 235 N.J. Super. 424, 432 (App. Div. 1989)). On the other hand, a
mere court-ordered award of custody to a third party does not grant the custodian
parental rights, nor does it terminate an existing parent-child relationship. Further,
a custody award does not entitle the third party to enter the constitutionally-protected
zone of autonomous privacy that is fundamental to the legal parent-child
relationship. Tortorice v. Vanartsdalen, 422 N.J. Super. 242, 251-252 (App. Div.
2011).
A third party establishing exceptional circumstances by proving
psychological parentage "may rebut the presumption in favor of a parent seeking
custody even if he or she is deemed to be a fit parent." Watkins, 163 N.J. at 247-
248. "In such circumstances, the legal parent has created a family with the third
party and the child . . . . essentially giving [the child] another parent[.]" V.C., 163
N.J. at 227. Once the court determines a third party is a child's psychological parent,
"he or she stands in parity with the legal parent" such that "[c]ustody and visitation
issues between them are to be determined on a bests interests [of the child]
A-4699-18T1
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standard[.]" V.C., 163 N.J. at 227-228 (citing Zack v. Fiebert, 235 N.J. Super. 424,
432 (App. Div. 1989)).
In V.C., our Supreme Court set forth the requirements that must be met in
order for a third party to establish psychological parentage. V.C., 163 N.J. at 223.
These four elements must be satisfied:
[1] the legal parent must consent to and foster the
relationship between the third party and the child; [2] the
third party must have lived with the child; [3] the third
party must perform parental functions for the child to a
significant degree; and [4] most important, a parent-child
bond must be forged.
[Ibid.]
In discussing the fourth element, the Court stated, "What is crucial here is not the
amount of time but the nature of the relationship. . . . Generally, that will require
expert testimony." Id. at 226-227.
In his April 3, 2019, oral opinion, the motion judge first noted that
psychological parentage could only be established by court order, and none of the
prior judges who heard issues involving Bob's custody ever deemed MGM to be
Bob's psychological parent. Next, the judge noted that in order to establish
psychological parentage, expert testimony is generally required. Nevertheless, later
during his oral opinion, when discussing MGM's credibility, the judge said:
A-4699-18T1
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The [c]ourt will note that she has had a big influence on
this child's life. Has been there when her daughter has
asked her to be. And if not for the fact that there is no
expert testimony with regard to the psychological parent
issue, the [c]ourt would look at many of these factors
favorably to the plaintiff/maternal grandmother,
specifically with regard to fostering a parent-like
relationship between the petitioner and the child; and
living with the child in the same household; and taking
significant responsibility for the child's care, education,
and development.
The judge then made adverse findings to MGM regarding the issue of consent,
finding Dad never consented to the creation of a parent-child relationship
between MGM and Bob. As for Mom, the judge noted "there was a level of
consent," but added, "Perhaps that was withdrawn." In denying Mom's motion
for reconsideration, the judge restated his finding that MGM failed to prove the
consent element necessary to establish her psychological parent claim.
Since Mom did not file a brief on this appeal, Dad is the only respondent.
As a result, the only issue that is not moot is whether or not MGM established
her psychological parent claim. Even if we were to affirm the motion judge's
decision holding that MGM did not establish she was Bob's psychological parent
as of April 2019, such a determination would not preclude MGM from asserting
this claim again, particularly since Bob has remained in her sole physical
custody for an additional twenty months.
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At the time this appeal was filed, the motion judge had vacated his order
of April 3, 2019; as a result, no final order concerning child custody had been
entered. A matter is not considered to be final and appealable as of right until
all issues as to all parties are resolved. R. 2:2-3(a); Vitanza v. James, 397 N.J.
Super. 516, 517-18 (App. Div. 2008); Yuhas v. Mudge, 129 N.J. Super. 207, 209
(App. Div. 1974). Consequently, we conclude that this appeal is interlocutory
and should have been pursued by motion for leave to appeal. R. 2:2-4. In
addition, we agree with the assessment of the motion judge that "a lot of what
the [c]ourt determined . . . after the plenary hearing has been rendered moot by
subsequent developments[.]" We therefore dismiss MGM's appeal and remand
for further proceedings.
On remand, the Family Part shall hold a case management conference within
thirty days. At that time, the trial court shall address any requests for discovery
regarding relevant developments since the initial plenary hearing and shall set a date
for the new plenary hearing, if necessary. In addition, the court shall also consider
the appointment of a guardian ad litem in this case. See R. 5:8A. We note with
approval the comment of the motion judge at the June 21, 2019 hearing that he was
"inclined to appoint one."
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Reversed and remanded. We do not retain jurisdiction.
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