Grandparent visitation permitted by clear and convincing evidence M.K. and L.K.,

Grandparent visitation permitted by clear and convincing evidence M.K. and L.K.,

Plaintiffs-Respondents,

v.

A.K.,

Defendant-Appellant.

___________________________________________

April 10, 2015

Argued February 24, 2015 – Decided

Before Judges Yannotti, Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FD-16-875-12.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

PER CURIAM

Defendant A.K. appeals from an order entered by the Family Part on August 22, 2013, granting visitation to plaintiffs M.K. and L.K. pursuant to the Grandparent Visitation Statute (the "GVS"), N.J.S.A. 9:2-7.1, and orders thereafter entered by the court implementing the August 22, 2013 order.¹ We affirm.

I.

This matter arises from the following facts. Defendant and Max were married in 1997 and thereafter had two children: Jeffrey, who was born in May 2000, and Jennifer, who was born in July 2002. Max died unexpectedly in July 2011. Plaintiffs are Max's parents. M.K. had a strained relationship with defendant before Max passed away. After his death, plaintiffs had disagreements with defendant concerning their contacts with the children, and the antagonism between the parties intensified. Eventually, defendant brought a halt to any regular visitation between the children and Max's family members.

In December 2011, plaintiffs filed a complaint against defendant seeking grandparent visitation pursuant to the GVS. They claimed that defendant was not acting in the best interests of the children, her actions were causing the children to suffer emotional harm and trauma, and that denial of visitation between the children and the members of Max's family could lead the children to believe that plaintiffs had some responsibility for Max's death. Plaintiffs alleged that, absent intervention by the court, they did not believe they would have access to the children, and the children would have no contact with their father's family members. 

The trial court conducted a plenary hearing on the complaint. At the hearing, M.K. testified that before Max died, plaintiffs "spent a lot of time together" with Max, defendant and the children. They vacationed together on the Outer Banks, Long Beach Island, on a cruise, and in Florida. M.K. taught the children how to scuba dive, and plaintiffs attended the children's soccer and baseball games. M.K. and Jeffrey also went fishing together at least four times. Max went with them once and, on the other occasions, it was just M.K. and his grandson. 

According to M.K., on Sundays, two or three times a month, Max brought the children to plaintiffs' home for breakfast. Sometimes, defendant joined them, but she testified that these Sunday visits only occurred about once a month. Defendant also said that the visits were "very inconsistent" in the year before Max died. During the winter months, the Sunday breakfasts ceased, since Max and defendant took the children to plaintiffs' condominium in Pennsylvania to ski. Plaintiffs did not use that residence at these times. On occasion, plaintiffs took care of the children when Max and defendant were away or out for an evening. 

Defendant testified that about a year-and-one-half before Max died, she and Max decided to start "scal[ing] back" the children's visits with plaintiffs. She said the children often went swimming in their grandparents' pool, but M.K. would "get agitated" if Jeffrey was diving incorrectly or not swimming enough, and he would make Jeffrey cry. Defendant further testified that because of the way plaintiffs treated her and the children, she and Max made "a conscious decision" to "have less involvement with" plaintiffs. 

In 2008, M.K. opened a business, which he owned with his partner, M.F. After M.K. asked defendant to become involved with the business, she began to work there on a part-time basis. Defendant later indicated that she wanted to purchase an interest in the business. Defendant said that, when it became clear that she was not going to become an owner, "it became very awkward." She left the business in April 2010. She testified that it became more and more apparent to her that she and M.K. were not "a good match to work together" on a daily basis. 

After Max died, plaintiffs continued to see Jeffrey and Jennifer occasionally. A few weeks after Max's death, plaintiffs attended a birthday party for Jennifer at defendant's home. Defendant also brought the children to plaintiffs' home for another Sunday breakfast, and on another occasion, defendant and the children went to dinner with plaintiffs. In addition, L.K. looked after the children for a few hours while M.K. went with defendant to deal with certain financial matters. Defendant described her relationship with plaintiffs at this time as "neutral." 

In September 2011, the parties were celebrating Rosh Hashanah at the home of the children's aunt. Defendant said that, when she arrived with the children, M.K. did not acknowledge her. She testified that M.K. sat in a room by himself. He "mumbled a hello and walked away from" her. 

A few weeks later, M.K. sent defendant an e-mail regarding a schedule for their condo and skiing weekends. In this e-mail, M.K. wrote that he could not remember seeing the grandchildren ski or being invited to spend the weekend with them at the condo. He wrote that "since this is one of my dreams I will invite myself and ask that [defendant] put aside one of her [weekends] where [L.K.] and I can spend some 'Quality Time'" with the children. 

Defendant replied, stating that she was perplexed by the tone of the e-mail and that it seemed like a "dig." She wrote that she wanted to have "a close family" but that she and her children "are a package deal and if [M.K. is not] nice to [her], [she] [cannot] spend time with" him. M.K. replied with a lengthy e-mail, which stated, 

Right now I feel [L.K.] and I have nothing to lose when it comes to seeing the kids as we [do not] see them now. If the kids are going to be used as a weapon against us when you feel I'm not nice to you, then maybe it[']s better we disengage now and hope that we all forget each other in time.

In October 2011, defendant received a letter from a law firm, informing her that M.K. had retained the firm "to obtain meaningful visitation with his grandchildren[.]" The letter asked defendant to provide a proposed visitation schedule within the next ten days in order to avoid litigation. 

Sometime later, L.K. e-mailed defendant, noting that she had called defendant to invite the children for breakfast that Sunday, and inquiring whether defendant and the children would be going to the paternal aunt's home for the holidays. Defendant returned the call and left a voicemail. Defendant informed plaintiffs that she and the children were going to be in Florida at that time. She suggested another date, "approximately one week later." Defendant also called the paternal aunt and told her she did "not feel comfortable" going over to her home for the holidays. 

After the lawsuit was filed, M.K. sent defendant a photograph of the headstone on Max's grave. M.K. had written "nice touch!" on the photograph and the image of a pair of skis on the tombstone had been circled. M.K. testified that he sent defendant the photo because "[t]hat pair of skis meant a lot" to him, because he had skied many times with Max. 

However, M.K. also explained that the inscription of the headstone omitting any mention of M.K.'s family "was just too much for [him] to take." M.K. sent a photograph of the headstone to D.G. and D.B., who had been Max's close friends. On the photo, M.K. had written, "Is this sick?" 

Defendant testified that, while Max was in the hospital, she had spoken with M.K. and expressed her concern about how the finances for Max's family would be handled after he passed away. It seems that M.K. had taken out a life insurance policy on each of his children. M.K. later gave defendant $30,000 from the proceeds of Max's policy. 

The trial judge conducted in camera interviews of Jeffrey and Jennifer. Jeffrey expressed hostility towards plaintiffs and downplayed their role in his life. He denied that M.K. taught him how to swim, and said that plaintiffs had merely pushed him around in their pool during visitation. He stated that the time he spent with plaintiffs was boring. Jennifer said her father taught her to ski, and she believed plaintiffs had denied them use of their residence near the ski slopes. Jennifer said that plaintiffs were mean and never really liked her and her brother. 

After the interviews, the judge informed the parties that he could not determine whether the children's comments were the result of an outside influence, or the grief they were experiencing over their father's death. The judge noted that neither party had retained an expert. The judge determined that a psychological evaluation was required, and entered an order dated August 6, 2012, appointing Paul Dasher, Ph.D. ("Dr. Dasher") to undertake the evaluation. Defendant filed a motion for leave to appeal the judge's order. We denied the motion. 

Thereafter, Dr. Dasher interviewed the children, the parties, and the children's paternal aunt. Dr. Dasher prepared a report on January 13, 2013. In his report, Dr. Dasher stated that "this was a family who functioned and related to one another in a conventional and consistent manner." He noted that after the conflict over M.K.'s business, Max "was the single most important person in keeping the relationships active between [defendant] and his parents[.]" After 2009, Max was the parent who "brought the children to his parent's home[.]" 

Dr. Dasher concluded that "the children did have a significant and positive bond with" their grandparents and "benefited from their relationship with" them. He further opined that defendant "has aggressively imposed her feelings about her in-laws" onto her children "without consideration of how" this would affect them "psychologically." Citing Jeffrey's "characterization of his grandparents being emotionally and physically abusive[,]" the doctor stated that it was "very clear" that the children had been "coached to parrot their mother's feelings." 

Dr. Dasher also expressed concern about what he viewed as defendant's "lack of insight" on the 

psychological burden she places on her children (ages 10 and 12) by telling them directly that they have the power to [affect] grandparent visitation by simply telling her they are ready for it, when at the same [time] [she] is constantly reminding them that their grandparents are bad people who are out to destroy her.

Dr. Dasher found it "disconcerting" that the children had been "forced to assume the role of protector of their mother and this continues to be a constant source of pressure and stress for them."

Consequently, Dr. Dasher concluded that "continued alienation" between plaintiffs and the children "is emotionally harmful to [the children] in the long and short term." He recommended visitation between plaintiffs and the children, as well as with their paternal aunt and her family, "as soon as possible[.]" The doctor stated that he remained "concerned for the psychological well-being of the children moving forward, if reconciliation with their father's family does not occur." 

Dr. Dasher also had conducted a bonding evaluation between plaintiffs and the children. Defendant was not in the room during the evaluation. Following the bonding evaluation, the children were holding each other and crying. Dr. Dasher testified that, after defendant returned to the room, he said something along the lines that Jeffrey had been "glad to have [had] the opportunity to express his feelings" to plaintiffs. Defendant described how the litigation was affecting her, which prompted the children to hug defendant and huddle together. 

Defendant retained Serge Mosovich, M.D., M.P.H. ("Dr. Mosovich"), as an expert and he submitted a report dated April 29, 2013. In his report, Dr. Mosovich took issue with many of the facts which Dr. Dasher had set forth in his report. Dr. Mosovich said that Jeffrey was in the seventh grade, and Jennifer would be entering sixth grade. The doctor wrote that the children told defendant that they did not want to see plaintiffs. He stated that Jennifer had been crying the entire time during the bonding session with plaintiffs. 

According to Dr. Mosovich, the children both had told Dr. Dasher and plaintiffs that they did not want any relationship with them. They were angry that plaintiffs would sue their mother, and they had a full understanding of what Dr. Mosovich said was "the disgusting behavior" plaintiffs "have displayed." Dr. Mosovich said the children told plaintiffs they did not want to see them anymore, and they believed plaintiffs did not love them.

Dr. Mosovich stated that Dr. Dasher had not shown that the children would be harmed if they do not have a bond with plaintiffs. He wrote that Dr. Dasher had ignored "the characteristics" of M.K. and his family, which he described as "fractious, [and] manipulative[.]" He also described M.K. as "fear-inducing, transgressive, overreaching and self-serving."
Dr. Mosovich said the children continued to flourish in school, and knowing more about M.K.'s family "adds more to the very strong possibility that the children would be better served without grandparents such as these." 

In May 2013, Dr. Dasher and Dr. Mosovich testified concerning the findings and conclusions in their respective reports. On August 22, 2013, the judge filed an order requiring defendant to submit a proposed schedule for visitation by plaintiffs with the children. In an accompanying written opinion, the judge determined that Dr. Dasher's conclusion and recommendations were fully supported by the evidence. The judge stated that Dr. Mosovich's critique was not persuasive or helpful. 

The judge noted Dr. Mosovich's report provided limited expert analysis, and parts of it appeared to have been written by defendant, her attorney or "some combination of the two." The judge noted that Dr. Mosovich had not conducted any psychological evaluation of the children and did not meet with them. His expertise also was centered on adults, rather than issues pertaining to psychological harm to children. The judge rejected Dr. Mosovich's suggestion that Dr. Dasher's report was biased in favor of plaintiffs.

The judge determined that plaintiffs had established grounds for relief under the GVS. The judge rejected defendant's contention that the harm to the children alleged by plaintiffs was insufficient to justify an order requiring visitation. The judge said defendant's action in refusing to allow plaintiffs visitation was resulting in emotional harm and trauma to the children, and the denial of visitation was cruel. 

The judge stated that there was an "unusually close" relationship between plaintiffs and the children at the time of Max's death, and that relationship had been impaired by defendant's unilateral action in severing the children's relationship with the paternal family. The judge found that Max's death occurred "under particularly traumatic circumstances" because it was "sudden" and unexpected. The judge found that plaintiffs could serve as "a buffer" for the children against the tragic effects of their father's death, in view of the close relationship that plaintiffs had with Max and both children.

The judge found that plaintiffs had established by "more than the preponderance of the evidence" that the children will suffer harm if the visitation they seek is denied. The judge also found that plaintiffs had established grounds for visitation by clear and convincing evidence. The judge required defendant to submit a proposed visitation schedule within ten days. Defendant filed a motion in the trial court seeking a stay pending appeal. On September 30, 2013, the judge entered an order denying the motion. 

The judge issued orders dated October 1, 2013, establishing a visitation schedule and appointing a visitation coordinator. On October 3, 2013, the judge entered a pickup and drop off order, and on October 4, 2013, entered an amended order concerning the visitation coordinator. Defendant filed a motion with this court seeking a stay pending appeal. On October 31, 2013, we entered an order denying the motion, but summarily remanded the matter to the trial court for thirty days so that the parties could submit evidence as to why visitation should be stayed pending the outcome of the appeal. 

Thereafter, the visitation coordinator provided the judge with a report concerning the first two court-ordered visits. Defendant provided the judge with a certification, and certifications from her friend and the children's current therapist. The judge conducted a hearing in the matter, at which defendant, her friend, the visitation coordinator and the therapist testified. 

On December 10, 2013, the judge filed a statement of reasons for denying defendant's motion for a stay. The judge found that the children would not be irreparably harmed if required to visit their grandparents once a month during the pendency of the appeal. The judge noted that the children were reluctant to resume visits with their grandparents, but this "was not a reasonable basis upon which to conclude [that] such visitation is harmful to the children."

The judge determined that defendant is not likely to succeed on the merits of her appeal. The judge then balanced the relative hardships of the parties, and noted that the children would be harmed if grandparent visitation is stayed pending appeal. The judge reaffirmed his earlier finding that defendant was pressuring the children to conform to her views of plaintiffs, and defendant's actions were creating the psychological burden she was seeking to avert. The judge stated that it was "overwhelmingly clear" that the equities favor enforcement of the court's visitation order. The judge entered orders dated December 10, 2013, denying the motion for a stay, and enforcing the visitation order. 

On January 9, 2014, defendant filed a motion with this court to stay visitation pending appeal. We entered an order dated February 7, 2014, denying the motion.²

II.

On appeal, defendant raises the following arguments: (1) the trial judge misapplied the law as established by the United States Supreme Court and the Supreme Court of New Jersey by failing to give deference and specific weight to her decision as to the persons with whom her children have contact; (2) the trial court's comparison of the facts of this case to those in Moriarty v. Bradt, 177 N.J. 84 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed.2d 78(2004) represents a misunderstanding of the applicable legal principles; and (3) Dr. Dasher's report is a net opinion that was not supported by facts or authority. 

We note initially that a trial court's findings of fact are binding on appeal if they are "supported by adequate, substantial, [and] credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Deference to a trial court's fact-finding is "especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). 

Moreover, the court should "accord deference to family court factfinding[]" because the Family Part has "special jurisdiction and expertise in family matters[.]" Id. at 413. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citing State v. Brown, 118 N.J. 595, 604 (1990)).

The GVS was initially enacted in 1972 and thereafter amended. Moriarty, supra, 177 N.J. at 98-99. The GVS presently provides as follows:

a. A grandparent or any sibling of a child residing in this State may make application before the Superior Court, in accordance with the Rules of Court, for an order for visitation. It shall be the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best interests of the child.

b. In making a determination on an application filed pursuant to this section, the court shall consider 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;

(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.

c. With regard to any application made pursuant to this section, it shall be prima facie evidence that visitation is in the child's best interest if the applicant had, in the past, been a full-time caretaker for the child.

[N.J.S.A. 9:2-7.1.]

Following the decision of the United States Supreme Court in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed.2d 49 (2000), which invalidated the grandparent visitation law enacted in the State of Washington, our Supreme Court observed that 

Troxel instructs at least this much —— that a fit parent has a fundamental due process right to the care and nurturance of his or her children; that that right is protected where a nonparental visitation statute respects a fit parent's decision regarding visitation by (1) according him or her the "traditional presumption" that a fit parent acts in the best interests of the child; and (2) giving "special weight" to a fit parent's determination regarding visitation.

[Moriarty, supra, 177 N.J. at 108 (citing Troxel, supra, 530 U.S. at 66, 69, 120 S. Ct. at 2060, 2062, 147 L. Ed. 2d at 57-59).]

The Moriarty Court held that, because the GVS represents an intrusion upon a parent's fundamental right to parental autonomy, "it is subject to strict scrutiny and must be narrowly tailored to advance a compelling state interest." Id. at 114. There is a presumption in favor of a parent's decision regarding the care of his or her child, which may be overcome by ensuring that the children will be protected "'from serious physical or psychological harm.'" Id. at 113 (quoting Watkins v. Nelson, 163 N.J. 235, 246-47 (2000)). 

Thus, the Moriarty Court stated that in cases where grandparent visitation is denied, 

the grandparents bear the burden of establishing by a preponderance of the evidence that visitation is necessary to avoid harm to the child. The grandparents' evidence can be expert or factual. For example, they may rely on the death of a parent or the breakup of the child's home through divorce or separation. In fact, many of the fifty grandparent visitation statutes specifically recognize the potential for harm when a parent has died or a family breakup has occurred and visitation is denied. In addition, the termination of a long-standing relationship between the grandparents and the child, with expert testimony assessing the effect of those circumstances, could form the basis for a finding of harm. 

[Id. at 117 (citations omitted).]

We are satisfied that there is sufficient credible evidence in the record to support the trial judge's determination that Jeffrey and Jennifer will suffer harm if visitation with plaintiffs is denied. Here, the judge noted that the children's father had died suddenly, which posed a risk of trauma to the children. Moreover, plaintiffs had enjoyed regular visits with the children before Max died. The relationships between plaintiffs and their grandchildren were such that denying plaintiffs visits would cause the children to suffer emotional harm. 

The judge's findings are supported by Dr. Dasher's testimony and opinion that continued alienation between plaintiffs and the children is emotionally harmful the children, in the short and long term. Dr. Dasher noted that, before their father died, both children had significant and positive bonds with their grandparents that benefited the children. The doctor stated that maintaining the relationship between the children and plaintiffs was important for the children's well-being. 

The doctor also pointed out that the negative views that the children had expressed concerning their grandparents were views that defendant had "aggressively imposed" upon them. They felt "tremendous pressure" to align themselves with defendant's negative views of their grandparents, and struggled to support their assertion that M.K. and L.K. were "bad people" even though there was overwhelming evidence to the contrary. As noted, the trial judge found Dr. Dasher's opinions and testimony to be credible and persuasive. 

Defendant argues that the judge erred by comparing the facts in this case to the facts in Moriarty. In that case, parents divorced and the mother later passed away from an apparent prescription drug overdose. Moriarty, supra, 177 N.J. at 88-90. The maternal grandparents sought visitation over the objections of the children's father, which the trial court granted. Id. at 121-22. 

The Moriarty Court affirmed that determination, noting that the children had spent every other weekend with their grandparents for years and participated in "'many, many activities'" with their grandparents. Id. at 118-19. The Court noted that one of the "trial court's most critical findings" was "'the death of the mother and the fact that it is extremely important that the children continue a bond with their mother's side of the family[,]'" and that all experts agreed on this. Id. at 121. 

The Court in Moriarty also noted that the trial court had found that the children's father had alienated them from their maternal grandparents, and visitation was necessary to counteract the alienation. Ibid. In addition, the Court pointed out that the trial court had found that limited visitation would allow the alienation to succeed, and cause the children to suffer self-esteem problems which would be destructive to them psychologically. Ibid.

We are convinced that the trial judge properly found that the facts in this case are substantially similar to the facts in Moriarty. Here, as in Moriarty, one of the children's parents died and the children were undoubtedly distressed by their parent's sudden and unexpected death. The surviving parent sought to cut off all contact between the children and the parents of the deceased parent. 

Like the surviving parent in Moriarty, defendant was attempting to alienate the children from the deceased parent's family members. As the trial judge noted here, Dr. Dasher's expert testimony was analogous to the expert testimony in Moriarty, where the experts expressed concerns about the harm to the children from the alienation of their grandparents. Furthermore, as was the case in Moriarty, the children had a significant relationship with the grandparents seeking visitation, which was marked by frequent visits and interactions over the years while their father was alive. 

Defendant further argues that the trial judge merely gave "lip service" to the presumption that a fit parent enjoys as to decisions regarding those with whom the parent's children will interact. We disagree. 

In his opinion of August 22, 2013, the judge made clear that defendant was entitled to a presumption in favor of parental decision-making. The judge concluded, however, that plaintiffs had established not only by a preponderance of the credible evidence, but also by clear and convincing evidence, that the children will suffer harm if they are denied visitation. Thus, the judge recognized the presumption in favor of parental decision-making, as required by Troxel and Moriarty, but found that it had been overcome by the required proof. As we stated previously, the record supports that determination. 

Defendant also argues that the judge erred by relying upon Dr. Dasher's report, which defendant maintains is a net opinion unsupported by facts or authority. Again, we disagree. The net opinion rule requires an expert to "'give the why and wherefore that supports the opinion, rather than a mere conclusion.'" Borough of Saddle River v. 66 E. Allendale, L.L.C., 216 N.J. 115, 144 (2013) (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011)). 

Dr. Dasher's report does not run afoul of the net opinion rule. The report was based on the doctor's interviews with the parties, the children, and the paternal aunt. Dr. Dasher did not merely state a conclusion. He explained the factual bases for his conclusion. We are convinced the judge did not err by relying upon Dr. Dasher's report and testimony.

We have considered defendant's other arguments and conclude that they are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). 

Affirmed. 

1  In this opinion, we use initials to refer to the parties and certain other persons, and use fictitious names for the children, their father and other family members. 

2  Defendant later moved before us to stay orders entered by the trial court regarding visitation dated January 21, 2015 and January 30, 2015. We denied the motion.