Opinion
DOCKET NO. A-5601-11T4
10-30-2013
ZAHIA H. AWAD and MOUNIR SAAD, Plaintiffs-Appellants, v. MARY IBRAHIM, Defendant-Respondent.
Zahia H. Awad and Mounir Saad, appellants pro se. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Maven.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FD-09-1505-03.
Zahia H. Awad and Mounir Saad, appellants pro se.
Respondent has not filed a brief. PER CURIAM
Plaintiffs appeal from the June 28, 2012 Family Part order terminating court-supervised visitation with their grandson, K.A. We affirm.
The relevant facts follow. Defendant and Reda Aziz (father), both natives of Egypt, were married in Egypt in 1996, and have one child, K.A., born in 1997. In 2001, the family moved to New Jersey. In January 2002, the court granted custody of K.A. to defendant. Father voluntarily returned to Egypt shortly thereafter in January 2002. Subsequently, the court awarded father court-supervised telephonic parenting time from his home in Egypt.
We cull the preliminary facts from our opinion in Ibrahim v. Aziz, 402 N.J. Super. 205 (App. Div. 2008).
The record does not include copies of the initial orders granting custody to defendant and visitation to the father. Instead, we have a December 2004 order continuing residential custody with defendant and continuing court-supervised telephonic parenting time between father and K.A.
In 2003, in a separate action, the court awarded plaintiffs, K.A.'s paternal grandparents, and certain paternal relatives, visitation with then six-year-old K.A. through the Hudson County Supervised Visitation Program. The order called for supervision by an off-duty police officer and the submission of periodic monitoring reports by the Visitation Coordinator. Thereafter, the order was revised several times, clarifying and adjusting the details of the visitation.
The court suspended plaintiffs' visitation in December 2008 to evaluate the supervision requirement. In the course of its review, the court considered a monitoring report, and interviewed then twelve-year-old K.A. The court, and defendant, learned that plaintiffs were not in New Jersey, but in Egypt, where they had been for several months. In a May 2009 ruling terminating the visitation order, the court determined that in plaintiffs absence, the paternal aunt had no standing under N.J.S.A. 9:2-7.1 (the "grandparents visitation statute") to enforce the visitation order.
Upon returning to New Jersey, plaintiffs filed a motion to reinstate court-supervised visitation with K.A. Defendant opposed the motion and filed a cross-motion arguing the request undermined her parental autonomy. Defendant, citing Moriarty v. Bradt, 177 N.J. 84, 88 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004), argued plaintiffs failed to plead or present proof that visitation was necessary to avoid harm to K.A. In her brief and certification, defendant acknowledged that she initially agreed to the visitation arrangement because she felt it was a good way for the child to maintain a relationship with the paternal family since the father was unable to re-enter the United States. However, K.A. began to resist, and informed defendant that he no longer wanted to go to the visits. After considering the opposing motions, the court reinstated plaintiffs' court-supervised visitation.
In 2012, defendant petitioned the court to terminate visitation due to K.A.'s refusal to attend court-supervised sessions. On May 17, 2012, the court ordered supervised visits to cease, but permitted plaintiffs, the paternal relatives, and K.A. to continue unsupervised visits every other month beginning June 18, 2012. In addition, the court granted K.A. the liberty to contact his father during plaintiffs' visitation time.
Defendant filed an Order to Show Cause to immediately terminate the visits, insisting that her son would continue to refuse to cooperate. Defendant attached a letter from K.A. expressing that he no longer wanted to visit with his father's side of the family. He wrote that he had been "doing [the visits] since 2003 or 2002 and [had] become old enough to decide for [himself] what [he] should do." Although the judge denied the Order to Show Cause, she scheduled a hearing on the matter and interviewed K.A. to ascertain his position.
Although this case does not involve a custody dispute, a court may interview a child, R. 5:8-6, and consider "the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision." See N.J.S.A. 9:2-4(c).
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During the June 28, 2012 hearing on defendant's petition, the judge presented a summary of her interview with K.A. to the parties and father, who telephonically appeared from Egypt. The judge informed them that she found K.A. to be a bright, mature, and focused teenager. She stated, "[c]hronologically, [he is] [fifteen-plus] years old, by way of maturity, [he is] far older." She recognized K.A., who would soon enter tenth grade, did well academically, and had many friends in school and in the community. The judge noted that K.A. was very skillful with technology, as he had explained to her how he used his Xbox gaming system to communicate with friends.
She related that K.A. explained his ability to contact his father through Yahoo and Skype applications on his cellular phone. He also has a "Magic Jack" number, allowing telephone calls to Egypt at a reduced cost. K.A. relied most often on his father calling him due to the time difference and his uncertainty of his father's schedule. He informed the judge that he had been speaking to his father every other Tuesday, but once the revolution started in Egypt, his father's calls became less frequent. K.A. indicated to the judge he would continue to talk to his father whenever his father calls.
With respect to plaintiffs and other paternal relatives, the judge related that K.A. was very clear that he no longer wanted court-ordered visitation imposed on him. He stated that although his mother had always encouraged him to visit with his relatives, and was always willing to take him to the visits, he never enjoyed going. He claimed that he went to the visits to make plaintiffs happy. The judge stated, "[h]e understands that all family, maternal and paternal, are an important part of him and he loves them all and always will." K.A. was willing to maintain a relationship with his paternal family, but wanted to do so on his own time. The judge told the parties that she impressed upon him the importance of family and the desirability of maintaining familial relationships. The judge summarized K.A.'s position as follows:
[H]e does not want the organized meetings. He has absolutely no problem with speaking, talking with his dad at any time. And his phone is always on, the . . . internet line to his phone is always open. He would talk to his dad anytime his dad calls. But he has no desire to have contact with his paternal grandmother, aunt, cousins.
The judge ruled that "there is no benefit to him of continuing his contact with his paternal grandmother, aunts, and cousins in a forced sense. . . . I would not continue the contact in a forced sense because he does have contact with his father[.]" The judge ultimately found that forcing K.A. to visit with his father's family was not in the child's best interest. The judge entered an order that provided: "The [c]ourt shall not order any further parenting time between [K.A.] and his paternal grandparents and relatives. [K.A.] may contact paternal grandparents and relatives as he wishes."
The father protested, believing the court's judgment negatively impacted his parenting time. The court emphasized that father's parenting time order was unaffected by the termination of plaintiffs' visitation order, stating "[the] case is closed, between [the] father's family but not for [the] father."
This appeal followed in which plaintiffs contend the court erred by terminating their visitation and finding that continued court-ordered supervised visitation is no longer in K.A.'s best interest. Based on our review of the record and applicable law, we are satisfied that plaintiffs' arguments lack sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). We make the following brief observations.
"Because of the family court's special expertise in family matters, appellate courts should accord deference to family court fact-finding." Cesare v. Cesare, 154 N.J. 394, 413, (1998). "[A]n appellate court should not disturb the 'factual findings 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 justice.'" Id. at 412 (alteration in original) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). On the other hand, "[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 LP v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
In Moriarty, supra, 177 N.J. at 88, the Supreme Court held "that grandparents seeking visitation under the statute must prove by a preponderance of the evidence that denial of the visitation they seek would result in harm to the child." A grandparent "must establish that denying visitation would wreak a particular identifiable harm, specific to the child." Mizrahi v. Cannon, 375 N.J. Super. 221, 234 (App. Div. 2005).
In this case, plaintiffs do not allege any specific, identifiable harm to K.A. if visitation is terminated. Rather, they state, without any proof or substantiation, that defendant brainwashed K.A. to denounce the paternal relatives and misrepresent his true feelings to the judge. These allegations are not only bald assertions, but are controverted by the judge's characterization of K.A.'s interview. The judge explored many topic areas with K.A. beyond asking him whether he wanted to continue visitation with plaintiffs. We reject the notion that defendant could have anticipated the judge's questions so as to prepare K.A.'s responses.
Plaintiffs also contend that court-ordered visitation is the only way for the paternal family to communicate with K.A. and claim that terminating the visitation would sever the child's relations with his father's side of the family. The record belies that contention. Contrary to plaintiffs' fear of alienation, the court did not preclude K.A. from having contact with his paternal relatives. Instead, the record demonstrates that defendant encouraged K.A. to maintain contact with his father's family and remained willing to take K.A. to arranged visits. While K.A. expressed that he no longer wanted the court to impose a visitation schedule, he stated that he would continue to accept telephone calls from plaintiffs and his father. Importantly, the court did not forbid visits between K.A. and his paternal relatives, but realistically recognized the long-term impact the restrictive nature of the visits had on the parties, and reasonably determined to free them from the constraints that had controlled their relationship with K.A. for two-thirds of his life.
Plaintiffs contend "negative effects will appear later on if the court decides to cut [and] destroy a normal relative relation just because the child wants that." We view this issue as whether the judge relied too heavily on K.A.'s desires. The preference of the child is only one of many considerations to be taken into account by the trial judge in the "best interests" formulation. See N.J.S.A. 9:2-4(c); Palermo v. Palermo, 164 N.J. Super. 492 (App. Div. 1978). Here, it is clear that K.A.'s viewpoint was critical to the judge's decision. At fifteen years old, the judge found K.A. mature, intelligent, and able to articulate his thoughts and ideas on the matter. The court, however, did not confine its decision to K.A.'s preference. As the judge who had presided over this case since 2004, she undoubtedly possessed extensive knowledge of the parties and the history of the dispute allowing her the ability to fairly evaluate K.A.'s preference in proper context with the familial circumstances. As such, we conclude the judge equitably balanced K.A.'s preference with plaintiffs' interests in deciding to terminate plaintiffs' visitation.
We further emphasize that Moriarty requires "some special need for continued contact." Daniels v. Daniels, 381 N.J. Super. 286, 293 (App. Div. 2005). It is insufficient for a grandparent to allege that he or she has a "close and loving relationship with [his or her]" grandchild, id. at 288, or that the grandparent "'represent[s] the only stable influence in [the child's] life,'" Rente v. Rente, 390 N.J. Super. 487, 495 (App. Div. 2007). Here, plaintiffs assert their love for K.A., and dispute his statements that he did not enjoy the family visits. In our view, their contentions are not enough to meet the high threshold established in Moriarty. While we have no doubt plaintiffs and paternal relatives have enjoyed and benefitted from the nine years of court-supervised visitation with K.A., in this action, they have not demonstrated any specific, identifiable harm that would befall K.A. were the forced visitations to end.
We are satisfied that the Family Part's termination of plaintiffs' court-ordered supervised visitation is supported by sufficient credible evidence and comports with applicable law. Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007). As such, the trial court's order terminating plaintiffs' court-supervised visitation is affirmed.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISON