SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1518-20

M.D.

1

and N.D,

Plaintiffs-Respondents,

v.

V.H. f/k/a V.V.-D.,

Defendant-Appellant.

________________________

Argued October 26, 2021 – Decided December 13, 2021

Before Judges Sumners and Firko.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Burlington County, 

Docket No. FD-03-0879-20.

Natalia Teper argued the cause for appellant (Teper 

Law Firm, LLC, attorneys; Natalia Teper, on the 

briefs).

Kathleen Pasquarello Stockton argued the cause for 

respondents (Stockton Family Law, LLC, attorneys; 

1 We use initials to protect the identity and confidentiality of the minor child 

and parties. 

NOT FOR PUBLICATION WITHOUT THE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.
2

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Kathleen Pasquarello Stockton and Jessica A. 

Beardsley, on the brief).

PER CURIAM

Defendant V.H. (Vicky) appeals the Family Part's order awarding 

visitation rights of her then seven-year-old daughter G.D. (Gail) to plaintiffs 

M.D. (Mindy) and N.D. (Nathaniel) (collectively "plaintiffs" or "grandparents"), 

Gail's paternal grandparents, under the Grandparent Visitation Act (the Act),

N.J.S.A. 9:2-7.1. Vicky also appeals the court's denial of her request for counsel 

fees. For the reasons set forth below, we affirm the order denying counsel fees,

but reverse and remand the order for visitation.

I

The trial court's plenary hearing revealed the following background 

regarding the parties' relationship and the grandparents' relationship with Gail. 

Vicky and grandparents' son N.D., III (Nate) began dating in their senior year 

of high school. Some eight years later, in 2013, while unmarried, they had Gail. 

Two months after Gail's birth, Vicky and Nate married. To help the couple 

in caring for Gail, Mindy and Vicky's father took turns babysitting Gail for 

approximately fourteen to fifteen months. In November 2014, Vicky and Nate 

separated after a domestic dispute over whether Gail should start daycare. This 

led to the grandparents babysitting Gail twice per week until she was two-and-
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a-half years old. The arrangement discontinued at Vicky's insistence when Nate 

filed for divorce. 

In January 2016, the court granted Vicky custody of Gail. Nate was 

granted supervised visitation under Vicky's supervision because of his substance 

abuse. During Nate's visits, the grandparents would occasionally accompany 

him without Vicky's permission. 

In September 2016, the court denied Nate's request to have Mindy replace 

Vicky as supervisor during his visits with Gail. Approximately one month later, 

a protective order was filed suspending Nate's visitation "in its entirety" because 

Nate had a positive drug test. 

In May 2017, Nate and Vicky's judgment of divorce was finalized. Vicky 

was awarded primary legal custodian of Gail with "all legal authority to make 

both major and minor decisions in [her] life," due to Nate's "failure . . . to comply 

with court orders, his substance abuse issues[,] and his failure to appear at trial."

The court declined to award Vicky sole legal custody, finding it was in Gail's 

best interest for "[both] parents to have a modified form of joint legal custody." 

Two years later, in May 2019, Nate tragically died from a drug overdose. 

After his death, as had been the case during and after the divorce, the 
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grandparents continued to send Gail cards and gifts for her birthdays and 

holidays and contacted Vicky about visiting Gail. 

In February 2020, the grandparents filed an application under the Act for 

visitation with Gail. Almost a year later, on January 22, 2021, following a 

plenary hearing on December 8 and 20, 2020, the court issued an order granting 

the grandparents visitation. As noted, Gail was seven years old at the time. 

The trial court explained its reasoning in a written decision. After noting 

that the grandparents gave credible testimony, the court found Vicky to be "a 

truthful witness in that she believe[d] what she [said]" but "[did] not find [her] 

to be a credible witness given the posture she [took] in this litigation." The court 

stressed that Vicky "remain[ed] extremely angry at [the] [g]randparents for their 

support of [Nate] in the divorce and their son's substance abuse issues and 

ultimate death." The court determined Vicky's "anger prevent[ed] her from 

rationally considering what [was] in [her daughter's] best interest." The court 

then considered "three distinct time frames[:] (a) . . . when the parties were . . . 

an intact family; (b) . . . during the divorce litigation; and (c) . . . after [Nate's] 

death." Without detailing the court's specific findings, in sum, it determined the 

parties' relationship eroded because following the divorce and continuing after 
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Nate's death, Vicky refused to allow the grandparents to have a relationship with

Gail. 

The court next addressed the Act's eight statutory 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.

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

The court found that "all but factor [three] are either in favor of [g]randparents 

or not applicable." Thus, "[b]ased upon the totality of the circumstances . . . 
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[g]randparents . . . met their initial burden of establishing that they are 

sufficiently bonded with [Gail] and that [she] would be harmed in the event that 

the [c]ourt [did] not provide for specific grandparent time over [Vicky's] 

objection." The trial court ordered that "[g]randparents be given one weekend 

per month with [Gail]" with the intention that "it would be appropriate to ease 

into [visitations] rather than starting with a full weekend." 

As for Vicky's motion for counsel fees under Rule 4:42-9, the court denied 

the request because she did not submit her attorney's billing records. In addition, 

"the [c]ourt [did] not find that [g]randparents . . . acted in bad faith during the 

time period leading up to the filing of their complaint or [thereafter]." 

Two weeks after granting grandparents visitation and denying Vicky's 

request for counsel fees, the court denied Vicky's motion to stay. Her 

subsequent applications for permission to file an emergent motion with our court 

and the Supreme Court were denied. Hence, the grandparents have been visiting 

with Gail while this appeal has been pending.

II

Vicky's first argument on appeal is that the trial court erred in awarding 

the paternal grandparents visitation with Gail. She specifically contends that 

under Moriarty v. Bradt, 177 N.J. 84 (2003), the grandparents failed to meet 
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their burden to prove, by a preponderance of evidence, that their visitation was 

necessary to avoid harm to Gail. Vicky contends the court "misapplied the law, 

which does not require finding what is in the best interest of the child, but rather 

[the] legal standard requires that once the harm is proved, then the issue of an 

appropriate visitation needs to be addressed based on the child's best interest." 

"The scope of appellate review of a trial court's fact-finding function is 

limited." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Generally, "findings 

by the trial court are binding on appeal when supported by adequate, substantial, 

credible evidence." Ibid. Moreover, "[b]ecause of the family courts' special 

jurisdiction and expertise in family matters, appellate courts should accord 

deference to family court factfinding." Id. at 413. An appellate court should 

intervene only when convinced the trial court's factual findings and legal 

conclusions "are so manifestly unsupported by or inconsistent with the 

competent, relevant and reasonably credible evidence as to offend the interests 

of justice." Id. at 412 (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 

N.J. 474, 484 (1974)). Furthermore, "[a] trial court's interpretation of the law 

and the legal consequences that flow from established facts are not entitled to 

any special deference," and this court reviews questions of law de novo. 
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Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995) (citations 

omitted).

In a grandparent's complaint seeking visitation, he or she must first make 

"a clear and specific allegation of concrete harm to the children." Daniels v. 

Daniels, 381 N.J. Super. 286, 294 (App. Div. 2005). Such harm must be 

"significant" enough to "justify[] State intervention in the parent-child 

relationship." Id. at 293. "Mere general and conclusory allegations of 

harm. . .are insufficient." Id. at 294. The purpose behind this heightened 

pleading requirement is "to avoid imposing an unnecessary and unconstitutional 

burden on fit parents who are exercising their judgment concerning the raising 

of their children." Ibid. Otherwise, "any grandparent could impose the 

economic and emotional burden of litigation on fit parents, and on the children 

themselves, merely by alleging an ordinary grandparent-child relationship and 

its unwanted termination." Id. at 293.

Under the Act, a "grandparent seeking . . . visitation must prove by a 

preponderance of the evidence that denial of [the visitation] would result in harm 

to the child." Major v. Maguire, 224 N.J. 1, 7 (2016) (citing Moriarty, 177 N.J. 

at 117-118). "Substantively, it is a 'heavy burden.'" Slawinski v. Nicholas, 448 

N.J. Super. 25, 34 (App. Div. 2016) (quoting Major, 224 N.J. at 18). Only "[i]f 
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. . . the potential for harm has been shown [can] the presumption in favor of 

parental decision making . . . be deemed overcome." Id. at 33 (quoting Moriarty, 

177 N.J. at 117). 

In Slawinski, we described the level of harm that a grandparent must 

demonstrate before a court is required to determine whether visitation is in a 

child's best interest. We stated:

[P]roof of harm involves a greater showing than simply 

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 parents, is 

inapplicable"). . . . The harm to the grandchild must be 

"a particular identifiable harm, specific to the child." 

Mizrahi v. Cannon, 375 N.J. Super. 221, 234 (App. Div. 

2005). It "generally rests on the existence of an 

unusually close relationship between the grandparent 

and the child, or on traumatic circumstances such as a 

parent's death." [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-ofharm threshold will the court apply a best-interests 

analysis to resolve disputes over visitation details. 

Moriarty, 177 N.J. at 117.

[Slawinski, 448 N.J. Super. at 34 (second alteration in 

original).]

The Moriarty Court provided the following examples of the type of 

supporting evidence that grandparents can produce to establish harm to a child:
10 A-1518-20

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 addition, the termination of a 

longstanding 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.

[177 N.J. at 117.]

Where a grandparent cannot make a threshold showing of harm, the 

complaint should be dismissed. A trial court "should not hesitate to dismiss an 

action without conducting a full trial if the grandparents cannot sustain their 

burden to make the required showing of harm." Major, 224 N.J. at 25. Under 

those circumstances, "a court may dismiss . . . by summary judgment under Rule

4:46-2(c) . . . [so as] not [to] prolong litigation that is clearly meritless." Ibid.

Such harm was present in R.K., where the grandparents lived in the same 

house with their granddaughter for six years while the girl's mother battled drug 

addiction, during which time the child's younger sibling tragically died. 434 

N.J. Super. 113, 123 (App. Div. 2014). After the child's mother died, her father 

obtained full custody and attempted to limit her contact with the grandparents. 

Id. at 127-28. When the grandparents sued, the trial court dismissed their 

complaint on the basis that the proofs "establish[ed] no more than a general, 

unsubstantiated allegation of harm." Id. at 142. We reversed and remanded for 
11 A-1518-20

the creation of a visitation schedule, reasoning the granddaughter "not only had

a long and close relationship with her grandparents during her formative years, 

but she actually resided with her grandparents for an extensive period of time 

after her parents divorced and after the tragic death of her younger sibling." Id.

at 146. Additionally, her "association with her grandparents came to an abrupt 

end as a result of her mother's death." Ibid.

Once a grandparent makes a threshold showing of that visitation is 

necessary to prevent harm to the grandchild, the presumption in favor of parental 

decision-making is overcome and the best interest standard applies. Id. at 150.

The trial court must then consider the noted eight statutory factors under 

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

Applying these guiding principles here, we conclude the trial court did not 

identify the factual basis for its finding "that [g]randparents have met their prima 

facie burden of establishing harm to [Gail]," and failed to articulate what the 

harm was and how it manifested in her. The court thus made a conclusion 

without any reasoning. In accordance with Rule 1:7-4(a), "the trial court must 

state clearly its factual findings and correlate them with the relevant legal 

conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (1980). "[N]aked 

conclusions do not satisfy the purpose of R[ule] 1:7-4." Ibid. Consequently, we 
12 A-1518-20

remand for the court to provide a statement of facts and legal conclusions

regarding the harm to Gail and how it was manifested by not visiting her 

grandparents. We do not disturb the court's consideration of the eight statutory 

factors under N.J.S.A. 9:2-7.1(b), as the court's findings in that regard are 

supported by credible evidence in the record. Of course, if the court finds on 

remand there are insufficient facts establishing Gail is harmed by not visiting 

with her grandparents, it must dismiss their complaint.

That said, given the fact that the grandparents have been visiting with Gail 

for the past ten months during the pendency of this appeal, the trial court has the 

discretion to grant an application by the parties to reopen the record.2 See e.g., 

State v. Cullen, 428 N.J. Super. 107, 111-12 (App. Div. 2012) (holding trial 

court has discretion on whether to reopen the record, but "consideration should 

be given to the prejudice to the opposing party.") (citing State v. Menke, 25 N.J. 

66, 71 (1957)); State v. Menke, 44 N.J. Super. 1, 7 (App. Div. 1957) (concluding 

a defendant should not be "precluded from offering such rebuttal proofs as he 

might choose" that are responsive and admissible); Ibrahim v. Aziz, 402 N.J. 

2

 The court may also want to consider the appointment of a guardian ad litem 

or an expert witness to aid in its determination. See R. 5:8B. We, of course, 

give no direction that such an appointment be made, but leave it to the court's 

discretion. 
13 A-1518-20

Super. 205, 214 (App. Div. 2008) (reversing and remanding "so the trial court 

c[ould] reevaluate th[e] record or in its discretion reopen the record for further 

evidence."). This may be appropriate in order to consider Gail's best interest. 

III

Although we have remanded this matter for the court to articulate the facts 

and law that establish Gail is harmed by not visiting her grandparents, we 

address Vicky's final contention on appeal that she was entitled to counsel fees. 

Regardless of the outcome on remand, counsel fees are not warranted.

An award of counsel fees in matrimonial matters is discretionary. 

Williams v. Williams, 59 N.J. 229, 233 (1971). A trial court abuses its discretion 

only "if the discretionary act was not premised upon consideration of all relevant 

factors, was based upon consideration of irrelevant or inappropriate factors, or 

amounts to a clear error in judgment." Masone v. Levine, 382 N.J. Super. 181, 

193 (App. Div. 2005) (citing Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 

(2002)).

Rule 4:42-9(a)(1) permits the trial court to award counsel fees in a family 

action pursuant to Rule 5:3-5(c). A trial court must consider the following 

factors when deciding whether to award counsel fees:

(1) the financial circumstances of the parties; (2) the 

ability of the parties to pay their own fees or to 
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contribute to the fees of the other party; (3) the 

reasonableness and good faith of the positions 

advanced by the parties both during and prior to trial; 

(4) the extent of the fees incurred by both parties; (5) 

any fees previously awarded; (6) the amount of fees 

previously paid to counsel by each party; (7) the results 

obtained; (8) the degree to which fees were incurred to 

enforce existing orders or to compel discovery; and (9) 

any other factor bearing on the fairness of an award.

[R. 5:3-5(c).]

Vicky contends the trial court erred in not awarding her legal fees because 

the grandparents' complaint seeking visitation of Gail was "unreasonable" and 

an exercise in "bad faith" that "forced [her] to engage in litigation[,] which was 

an unnecessary economic and emotional burden on her." Citing N.J.S.A. 2A:34-

23, she contends a court must "consider the factors set forth in the court rule on 

counsel fees, the financial circumstances of the parties, and the good or bad faith 

of either party." Vicky maintains the "[t]rial [c]ourt erroneously declared that 

[she] . . . failed to provide [the trial] [c]ourt with the [c]ertification of [s]ervices, 

when she ha[d] in fact done so by filing [c]ertification of [c]ounsel [f]ees." She 

contends that since Gail's grandparents are "comfortable financially and can 

afford to engage in litigation," they can "contribute [to], if not [entirely] pay for 

[her] legal fees." 
15 A-1518-20

To the contrary, we agree with the court that the record clearly reflects the 

grandparents did not act "in bad faith during the time period prior to filing" their 

application for visitation. They had a relationship with their granddaughter,

beginning at her birth, that was curtailed, and they properly exercised their rights 

under the Act to rekindle that bond. Irrespective of the outcome of this 

litigation, there was nothing egregious about their actions that warrant their 

responsibility, in part or in full, for Vicky's counsel fees. We see no abuse of 

discretion by the court's decision not to award counsel fees. 

We affirm in part, and reverse and remand in part. We do not retain 

jurisdiction.