SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-1141- 23 L.N. and C.N., Plaintiffs-Appellants,

v. B.R. , Defendant-Respondent.

________________________

Argued June 4, 2024

– Decided July 8, 2024 Before Judges Gooden Brown and Haas. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FD- 19

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- 24. Melissa M. Ruvolo argued the cause for appellants (Family Focused Legal Solutions, Ruvolo Law Group, LLC , attorneys; Melissa M. Ruvolo, of counsel and on the briefs; Sofia M. Marsella, on the briefs ). Paris P. Eliades argued the cause for respondent (P aris P. Eliades Law Firm, LLC, attorneys; Paris P. Eliad es, of counsel and on the brief; Amy F. Gjelsvik, on th e brief). NOT FOR PUBLICATION WITHOUT THE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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 1141

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PER CURIAM

Plaintiffs L.N. 1 and C.N. appeal from the November 1, 2023, Family Part order dismissing their complaint 2 against defendant B.R. for joint legal custody

of their grandson and defendant's son, R.R., because they failed to demonstrate they were R.R.'s psychological parents. We reverse and remand for a plenary hearing. Defendant was in a dating relationship with plainti ffs' daughter who became pregnant with R.R. During their relationshi p, the couple lived with plaintiffs. Tragically, on November 3, 2021, plaintiffs' daught er died unexpectedly during childbirth. Defendant brought R.R. home from the hospital and continued to live in plaintiffs' home for appro ximately two years. During the two years, defendant worked as a truck driver f or plaintiffs' trucking company and plaintiffs provided care for R.R., incl uding childcare while

defendant worked. The arrangement between the parties was mutually sa tisfactory for a significant period of time. However, eventually, t he relationship soured, and,

1 We use initials to protect the confidentiality of t he child. R. 1:38 -3(d)(13).

2 Although the November 1, 2023, order lists L.N. as the only plaintiff, in the complaint, both L.N. and C.N. are identified as pla intiffs.3 A- 1141

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ultimately, on October 6, 2023, after plaintiffs re turned with R.R. from a twomonth trip to Florida, defendant packed his belongi ngs and moved out of plaintiffs' home with R.R. Ten days later, on October 16, 2023, plaintiffs fil ed an order to show cause (OTSC) and a verified complaint under the NonDissolution ( FD ) docket, seeking temporary restraints and "joint l egal custody and primary residential custody" of R.R. The compl aint did not request grandparent visitation. Defendant opposed the application and cross-moved for other relief not pertinent to th is appeal. To support their respective positions, the parties submitted dueling certifications disputing the extent of plaintiffs' care

of R.R. and their role in R.R.'s life. Specifically, L.N. certified that she and C.N. had been R.R.'s "de facto parents" and that she had "performed virtually all day- to -day care for . . . the past two . . . years." She averred that defendant "repeatedly state[d] that he wanted [her] and [her] husband to raise [R.R.]." L .N. characterized defendant's presence in R.R.'s life as sporadic, stating that d efendant would "stay at [his girlfriend's] house most nights of the week," and w hen he was at their home, he would "sleep in [their daughter's] bedroom" while R .R. would "sleep in [plaintiffs'] bedroom" with them. According to L.N., defendant "would occasionally stop over [their] house" and "play wit h [R.R.] for a short time"4 A- 1141

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before "leav[ing] again." L.N. stated that on occa sion, when defendant became angry, he would "threaten to take [R.R.] away from [them]. " L.N. also declared that defendant would sometimes "bring [R.R.] to [de fendant's] mother's house in Pennsylvania and not advise [plaintiffs] when he was goi ng to return [R.R.]." L.N. attested that defendant eventually "followed t hrough on his threat" on October 6, 2023, when he "abruptly whisked [R.R. ] out of the house," claiming "that he was taking [R.R.] to his mother's home in Pennsylvania to

visit. " According to L.N., defendant "has since refused to respond to any text messages or phone calls" about R.R.'s return. L.N. added that although defendant may attribute his actions to anger over p laintiffs keeping R.R. in Florida for two months purportedly without defendant's consent , on the contrary, "[ d]efendant was fully aware of [their] plans, consen ted to [R.R.] accompanying [them] to Florida, and at no point during [their] t rip did he request that [they] bring [R.R.] back to New Jersey," inquire about R.R .'s wellbeing, "or even request to speak with him on the phone or via Facet ime" (italicization omitted). In his certification, defendant disputed L.N.'s as sertions , describing them as "self-serving statements and lies." Defendant denied stating that he wanted plaintiffs to raise R.R., and averred that he "never consented to or fostered a parental relationship between" R.R. and plaintiffs. Defendant certified that he5 A- 1141

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was "always home," that he and R.R. stayed in plain tiffs' daughter's room together, and that even though plaintiffs helped ca re for his son, he "did not shy away from taking care of" R.R.'s daily needs. He s tated that L.N. would prevent him from parenting his son by "physically grab[bing ] [R.R.] away" when he tried to feed him, and "refus[ing] to allow [defend ant] to bathe" R.R or change his diaper. Defendant claimed further that plainti ffs engaged in "deceit and trickery" to try to "exclude [him] from [his] son's life," and stated that he found a "tracking device hidden in [his] personal diaper bag" that was registered to another one of plaintiffs' daughter s (emphasis omitted). Finally, defendant denied consent ing to plaintiffs' two-month trip to Florida with R.R. Instead, defendant averred that he "freely gave [his] permission for two weeks," but "did not give them c onsent" to take away his son for "nearly two

. . . months" and was "worried that they would try and ke ep him in Florida" (emphasis omitted). Defendant claimed that while they were in Florida, he "always asked about [R.R.]," and talked to R.R. on FaceTime. According to defendant, after plaintiffs continuous ly extended the trip, he finally demanded that they bring R.R. home. When plaintiffs returned from Florida on October 5, 2023, defendant confirmed that he packed up and moved out of plaintiffs' home with R.R. the next day.6 A- 1141

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In a reply certification, L.N. described defendant' s accusations as "unbelievable lies." In support, L.N. submitted sc reen shots of text messages with defendant's mother describing L.N.'s care of R .R. as "fantastic" and "[a]wesome," photographs of R.R.'s haircuts, and re ceipts for expenses plaintiffs

incurred for R.R. without reimbursement. L.N. also submitted a Mother's Day card in which defendant purportedly referred to L.N . as a "bonus mom" (emphasis omitted). On October 17, 2023, the motion judge issued an ord er and accompanying written statement of reasons denying plaintiffs' re quest for emergent relief and converting the application to a regular motion. On November 1, 2023, the judge conducted oral argument on the motion, during which plaintiffs' counsel reaffirmed that plaintiffs were seeking custody bas ed on their role as psychological parents. Counsel specified that "thi s [was] more than just . . . a grandparent visitation case[] because of more than just a typical grandchild relationship." Relying on the parties' certifications, the judge i ssued an order and oral opinion on the same day denying plaintiffs' application for custody of R.R . and dismissing plaintiffs' complaint. The judge determ ined that plaintiffs could not make a prima facie showing of psychological parenth ood because although7 A- 1141

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plaintiffs "did live with the child," defendant als o lived in the home with R.R. , never consented to plaintiffs "rais[ing R.R.]," and "did not allow them to be [R.R.'s] primary caregivers." According to the jud ge, although plaintiffs "assisted with [R.R.'s] needs," their actions were typical of grandparents and did

not "rise [] to the level of being a primary caregiver" because they did not perform "the parental functions to [a] significant degree." As such, the judge explained that as R.R.'s parent, defendant had the right to take his son and "go live somewhere else." As to any bond, although the judge assumed that plaintiffs had a relationship with R.R., the judge found there was no "expert evaluation[] indicating there[ was] a bond." The judge also determined that plaintiffs did not m ake "a prima facie showing that they should have grandparent[] visitation," stat ing :

Where there's an application for grandparent [] visitation, the applicant needs to show that there' d be harm to the child, if visitation wasn't imposed. I also don't find that the plaintiff has shown that there would be harm to the child, if there was no [ c]ourt ordered visitation.

. . . . . . . [L]egally, I don't find that I can impose an order, ordering visitation. The judge entered a memorializing order and this ap peal followed.8 A- 1141

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On appeal, plaintiffs argue the judge "incorrectly interpreted and misapplied the law on psychological parentage." Plaintiffs assert the judge "failed to fully analyze and assess [p]laintiff[s'] application" under V.C. v. M.J.B., 163 N.J. 200 (2000), placed outsized emphas is on the fact that "[d]efendant was also living in the home with [plai ntiffs]," and made findings "based on dueling and conflicting papers and withou t the benefit of testimony from the parties." We agree. A reviewing court should not disturb the "factual f indings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of jus tice." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (alteration in original) ( quoting Rova Farms Resort, Inc. v.

Inv s. Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We accord special deference to the findings of fact made by the Family Part becaus e of that court's expertise in family matters. Id. at 413. Deference is appropriate where the evidence is "largely testimonial and involves questions of cred ibility" because the trial court

is in the best position to evaluate the veracity of t he witnesses. P.B. v. T.H., 370 N.J. Super. 586, 601 (App. Div. 2004). Even when a court denies a request for child custody without a plenary hearing, the denial is reviewed for an abuse of9 A- 1141

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discretion, with deference to the expertise of the Family Part judge. Costa v. Costa, 440 N.J. Super. 1, 4 (App. Div. 2015). Howe ver , we review issues of law de novo, including issues arising in a custody disp ute. R.K. v. F.K., 437 N.J. Super. 58, 61 (App. Div. 2014). In W.M. v. D.G., 467 N.J. Super. 216 (App. Div. 202 1), we outlined the rights of parents vis -a-vis third parties in a custody dispute.

"[T]he right of parents to the care and custody of their children is not absolute." [V.C., 163 N.J. at 218]

. While there is a presumption supporting a natural parent's "right to the care, custody, and control o f his or her child," this "presumption in favor of the paren t 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, 131-32 (App. Div. 2014) (quoti ng [Watkins v. Nelson, 163 N.J. 235, 246 (2000)]). An exceptional circumstance that overrides the presumption favoring the natural parent occurs when a third party has become a child's "psychological par ent," 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. Fam. & Child.'s Soc. of Elizabeth, 72 N.J. 127, 132 (1976) ). The exceptional circumstances element is grounded i n the court's power of parens patriae to protect mino r children from serious physical or psychological har m. Watkins, 163 N.J. at 246- 47. [W.M., 467 N.J. Super. at 230 (third alteration in original) .]10 A- 1141

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Critically, only a third party who has stepped in to assume th e obligations of parenthood has standing to raise a psychological parenthood claim. In V.C. , our Supreme Court set forth a four-part test for a third party to prove psychological parenthood. 163 N.J. at 223. First, the petitioner must show t hat the biological parent "'consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with th e child.' " Ibid. (quoting In re Custody of H.S.H.- K. , 533 N.W.2d 419, 421 (Wis. 1995)). The term "fost ered" means "that the legal parent ceded over to the thir d party a measure of parental authority and autonomy and granted to that third pa rty rights and duties vis-avis the child that the third party's status would n ot otherwise warrant." Id. at 224. Also, "consent" will have different meanings under different scenarios. Id.

at 223 n.6. Second, the petitioner must show that "'the petitio ner and the child lived together in the same household.' " Id. at 223 (quoting H.S.H.- K. , 533 N.W.2d at 421)

. Third, the petitioner must have "'assumed the obli gations of parenthood by taking significant responsibility for the child' s care, education and development . .

. without expectation of financial compensation." Ib id. (quoting

H.S.H.- K. , 533 N.W.2d at 421). The court should evaluate "t he nature, quality, and extent of the functions undertaken by the third party and the response of the11 A- 1141

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child to that nurturance." Id. at 226. Fourth, th e petitioner must have been in a parental role for a length of time that was suffici ent to have created a bond with the child that was parental and dependent in nature . Ibid. The Court explained that what "is crucial . . . is not the amount of time but the nature of the relationship." Ibid. The bond b etween a psychological parent and the child need not be the same as or stronger t han that of the bond between the biological parents and the child. See i d. at 226-27. Notably, proof of the parent-child bond is critically important and requir es expert testimony. Ibid. In fact, the only prong of the psychological parent te st requiring expert testimony is the fourth prong. Id. at 223, 227. Overall, the four-prong analysis is fact-sensitive. Id. at 223. "A third party establishing exceptional circumstances by pro ving 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.'" W.M., 467 N.J. Super. at 231 (quoting Watkins, 163 N.J. at 247-48). If successfully prov en, a third party who is considered to be a psychological parent will be pla ced "in parity" with a legal parent for the purposes of a custody determination. V.C., 163 N.J. at 227 -28, 230. Importantly, once a third party is "in parity " with the legal parent, the third party "stands in the shoes of [the biological] pare nt" and the court must then12 A- 1141

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conduct a best interests analysis under N.J.S.A. 9: 2-4(c). Watkins, 163 N.J. at

254. Stated differently, after deciding the psychologica l parenthood issue, the court must then decide whether the award of custody or visitation to the third party would "promote the best interests of the chil d." Ibid. In that regard, the court should focus on the "safety, happiness, physi cal, mental and moral welfare of the child." Beck v. Beck, 86 N.J. 480, 497 (198 1) (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956))

. When an analysis of the child's best interests demo nstrates that both the biological parent and the psychological parent are equally capable of caring for the child, custody will be awarded to the biologica l parent and visitation to the psychological parent. V.C., 163 N.J. at 2 28

. Thus, pursuant to N.J.S.A. 9:2-4, the court may enter an order that: provides joint custody of the child to both parents with provisions for residential arrangement s that allow the child to reside with one parent or with both and, also, prov isions for decision-making with regard to the child; awards sole custody to on e parent with parenting time for the non-custodial parent; or sets forth any oth er custody arrangement as the

court determines is in the best interests of the ch ild. Here, the judge did not conduct a robust analysis o f the required fourprong psychological parenthood test to determine wh ether plaintiffs' challenge13 A- 1141

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to defendant's custody satisfied the legal requirem ents. Rather, the judge made conclusionary statements based on conflicting certi fications without eliciting any testimony, hearing from experts, or considering further evidence. We acknowledge that plaintiffs filed their OTSC and ve rified complaint under the

FD docket. The FD docket allows actions by non -parent relatives seeking custody. B.C. v. N.J. Div. of Child Prot. & Perman ency, 450 N.J. Super. 197, 201 (App. Div. 2017). Typically, the court handles an FD matter in a summ ary fashion to promote the "'purpose of swiftly and eff ectively disposing of matters which lend themselves to summary treatment.' " W.M., 467 N.J. Super. at 233 (quoting R.K. v. D.L., Jr., 434 N.J. Super. 113, 13 3 (App. Div. 2014)). Nevertheless, as we explained in W.M. , where the plaintiff has "raised a credible claim of psychological parenthood," the ma tter should not be treated summarily. Id. at 234; s ee also N.J. Div. of Child Prot. & Permanency v. C.S. , 432 N.J. Super. 224, 226- 29 (App. Div. 2013) (explaining the parties were required to obtain bonding evaluations considering the best interests of the child where the grandparents sought custody of their gran dchild under an FD docket). Based upon the record before us, we conclude plaint iffs raised a credible claim of psychological parenthood under the four-pa rt test established in V.C. Although "[e]stablishing psychological parenthood is not an easy task" and the14 A- 1141

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V.C. standards "should be scrupulously applied in o rder to protect the legal parent-child relationship," 163 N.J. at 230, the ma tter should not have been treated summarily. Instead, in light of the confli cting certifications, the judge should have afforded the parties the opportunity to conduct discovery , including

obtain ing expert evaluations. The judge should then "conduct a plenary hearing to assess the credibility of witnesses' testimony, after they have been subjected to rigorous cross examination." R.K., 434 N.J. Sup er. at 121. Accordingly, we reverse the judge's ruling on plaintiffs' applicati on for joint custody based on a psychological parenthood claim, reinstate the compl aint, and remand for a plenary hearing. Turning to the judge's ruling regarding grandparent visitation, the Grandparent and Sibling Visitation Statute (GVS), N .J.S.A 9:2 -7.1, "confers on a child's grandparent . . . standing to file an act ion for an order compelling visitation," Major v. Maguire, 224 N.J. 1, 13 (2016 ), and "provides the framework for grandparent . . . visitation when vis itation is proven to be 'in the best interests of the child,'" N.J. Div. of Youth & Fam. Servs. v. S.S., 187 N.J. 556, 562 (2006) (quoting N.J.S.A. 9:2-7.1(a)). Still , "the parent's determination whether to permit visitation is entitled to 'specia l weight,'" Major, 224 N.J. at 15 (quoting Troxel v. Granville, 530 U.S. 57, 67-69 (2 000)), and a "grandparent15 A- 1141

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seeking . . . visitation [under the GVS] must prove by a preponderance of the evidence that denial of [the visitation] would resu lt in harm to the child." Id. at 7 (citing Moriarty v. Bradt, 177 N.J. 84, 117-18 (2 003)). To that end, the grandparent must make "a clear and specific allegat ion of concrete harm to the children." Daniels v. Daniels, 381 N.J. Super. 286 , 294 (App. Div. 2005).

In Slawinski v. Nicholas , 448 N.J. Super. 25 (App. Div. 2016), we described the level of harm a grandparent must demo nstrate before a court is required to determine whether visitation is in a chi ld's best interests. We stated:

[P]roof of harm involves a greater showing than simp ly the best interests of the child. [Moriarty, 177 N. J. at 116 ] (stating that a dispute between a "fit custodial parent and the child's grandparent is not a contest between equals[,]" consequently "the best interest standard, which is the tiebreaker between fit paren ts, is inapplicable"). . . . The harm to the grandchild must be "a particular identifiable harm, specific to the ch ild." Mizrahi v. Cannon, 375 N.J. Super. 221, 234 (App. D iv. 2005). It "generally rests on the existence of an unusually close relationship between the grandparen t and the child, or on traumatic circumstances such a s a parent's death." [Daniels, 381 N.J. Super. at 294] . By contrast, missed opportunities for creating "happy memories" do not suffice. Mizrahi, 375 N.J. Super. at 234. Only after the grandparent vaults the proof- of

harm threshold will the court apply a best-interest s analysis to resolve disputes over visitation detail s. Moriarty, 177 N.J. at 117. [Slawinski, 448 N.J. Super. at 34 (third alteration in original) (citations omitted) .]16 A- 1141

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Accordingly, if a grandparent meets the threshold s howing of harm, the best interests standard applies and a trial court should consider the statutory factors pursuant to N.J.S.A. 9:2-7.1(b) to determine whethe r permitting visitation would be in the child's best interests. Moriarty, 177 N. J. at 117. Here, the judge denied grandparent visitation under the GVS without plaintiffs having either requested it in their complaint o r advocated for it during oral argument. Indeed, a claim of grandparent visi tation requires proof of different facts and application of different law from a p sychological parenthood claim. We therefore reverse the judge's ruling on grandparent visitation without prejudice to plaintiffs making the application anew

. Plaintiffs seek a remand to a different judge in th e Family Part because the judge made credibility findings based on "[d]ef endant's [c]ertification ." In an abundance of caution, we direct that this matter be assigned to a different judge on remand to avoid the appearance of bias or prejudice. See Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005) (directing remand "to a different judge for the plenary hearing to avoid th e appearance of bias or prejudice based upon the judge's prior involvement with the matter and his expressions of frustration with plaintiff") ; N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 617 (1986) ("Because the trial judge has heard this evidence17 A- 1141

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and may have a commitment to its findings, we believe it is best that the case be reconsidered by a new fact-finder."). In sum, w e reverse and remand with directions that the matter be assigned to a different judge for further proceedings consis tent with this opinion. We express no opinion as to the ultimate outcome. Given our decision, we need not address the remaining arguments. Reversed and remanded. We do not retain jurisdicti on.