                        NOT FOR PUBLICATION WITHOUT THE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-4300-16T4

C.O.M.,1

        Plaintiff-Appellant,

v.

J.O.G.-M.,

     Defendant-Respondent.
________________________________

              Submitted March 13, 2018 – Decided July 30, 2018

              Before Judges Fasciale and Sumners.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Burlington
              County, Docket No. FD-03-0952-17.

              Law office of Thomas J. Hurley, LLC, attorney
              for appellant (Thomas J. Hurley, on the
              brief).

              Hegge & Confusione, LLC, attorneys for
              respondent (Michael Confusione, of counsel and
              on the brief).

PER CURIAM




1
     We use initials to protect the parties' privacy issues.
      Plaintiff C.O.M. (Clay)2 appeals from a Family Court order

denying without prejudice his application for visitation with his

grandson, T.G. (Tim).      We conclude that Clay failed to satisfy his

burden of proof under Major v. Maguire, 224 N.J. 1, 6-7 (2016),

and, thus, we affirm.

      In February 2014, defendant J.O.G.-M. (Janet) separated from

her husband, leaving him in Hawaii where he was stationed in the

military, and returned to New Jersey with their two-year-old son,

Tim, to live with her father Clay and her stepmother.                According

to Janet, she left her father's house in May 2016, to move in with

her   mother.3      In   November   2016,     she   and   Tim    moved    into    a

condominium.     In January 2017, Clay filed a pro se application for

grandparent      visitation   rights   with    Tim,   then      five-years-old,

because Janet refused to allow him to see Tim.             Two months later,

after   unsuccessful     mediation,    the    court   dismissed     the    action

without prejudice.

      Undaunted, Clay refiled his application, and later retained

counsel.    Janet filed a counterclaim seeking attorney fees for

filing a frivolous action.            Clay then filed a motion seeking



2
  We also use pseudonyms because the parties have the same surname
and for ease of reference.
3
   Although Clay certified that Janet moved out of his house in
November 2016, this factual dispute has no bearing on our analysis.

                                       2                                  A-4300-16T4
grandparenting   time   involving       weekend   visitation;   regularly

scheduled video communication; vacation time; overnight birthday

visitation; and advance notification of school or extracurricular

events to enable him to attend.         In support of his motion, Clay

submitted a certification detailing the close relationship he had

developed with Tim during the period that Janet and Tim resided

with him.   When the motion was heard, Clay's testimony echoed his

certification about how he assisted Janet on a daily basis in

caring for Tim while she was attending nursing school.          The court

denied Clay's application for grandparenting time and Janet's

request for attorney's fees.

     Before us, Clay argues the court failed to address the

statutory factors set forth in N.J.S.A. 9:2-7.1 and failed to

follow Major v. Maguire, 224 N.J. 1, 6-7 (2016).4       He also contends

the court should have allowed discovery before dismissing his

application.

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

function is limited.    The general rule is that findings by the

trial court are binding on appeal when supported by adequate,

substantial, credible evidence."        Cesare v. Cesare, 154 N.J. 394,



4
  Incorrectly cited as Major v. Maguire, 218 N.J. 530 (2014), the
Supreme Court's decision granting petition for certification for
its subsequent decision in Major v. Maguire, 224 N.J. 1, 7 (2016).

                                    3                             A-4300-16T4
411-12 (1998).     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 that 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 review questions of law de

novo. Manalapan Realty, LP v. Twp. Comm., 140 N.J. 366, 378 (1995)

(citations omitted).

       Turning to the legal issues raised by Clay, we review the

principles set forth in Moriarty v. Bradt, 177 N.J. 84 (2003), and

recently reaffirmed by the Supreme Court in Major v. Maguire, 224

N.J. 1, 7 (2016).         Parental autonomy in decisions regarding the

"care, custody and control of their children" is a fundamental

right   that    will   only   yield   to   a   compelling       state    interest.

Moriarty, 177 N.J. at 103 (citation omitted).                   Pursuant to the

Grandparent Visitation Statute, N.J.S.A. 9:2-7.1, the grandparent

seeking visitation over the objection of a fit parent must prove

                                       4                                      A-4300-16T4
by a preponderance of the evidence "that visitation is necessary

to avoid harm to the child." Moriarty, 177 N.J. at 117.               The

probability that a child will suffer serious psychological or

physical harm provides grounds for interference with parental

autonomy under the doctrine of parens patriae.           Id. at 112-13.

The Court provided the following examples of supporting evidence:

           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 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.]

If a grandparent meets that burden, the presumption in favor of

parental   decision-making   is   overcome   and   the   best   interest

standard applies.   Ibid.    N.J.S.A. 9:2-7.1(b) lists the relevant

factors to be considered:

           (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


                                   5                             A-4300-16T4
           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.

In addition, N.J.S.A. 9:2-7.1(c) provides: "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."

     In its oral decision, the court found there was nothing in

Clay's certification nor his testimony indicating that Janet was

not a fit parent and that he had a psychological bond with Tim

that would be harmed unless there is grandparenting time.       The

court pointed out that even though Clay and Tim have "shared some

time together," this alone does not establish Clay's right to

court ordered grandparent visitation over Janet's autonomy as

Tim's mother.   We conclude that the record supports this factual

finding.   While the record speaks to Clay forming a sound and

loving relationship with Tim, Clay fails to present the necessary

                                 6                         A-4300-16T4
evidence that his grandson will suffer serious psychological or

physical harm due to Janet's decision not to allow visitation.

Only upon showing that such harm will occur, is there an analysis

of the best interest standard under N.J.S.A. 9:2-7.1.

     Lastly, we find no merit to Clay's contention that the court's

denial was premature because discovery should have been allowed.

First, he initiated the court's ruling by making the motion to

obtain grandparenting time based upon the assertion that he could

prevail on his certification and testimony – thereby suggesting

that discovery was unnecessary.           Second, and equally important,

since   the   court's   order   was   without   prejudice,   Clay   is   not

foreclosed from seeking visitation in the future, and can seek

discovery at that time if he believes that it is needed.5

     Affirmed.




5
   Since the issue was not presented to the court, we have no
opinion as to the scope of any discovery that may take place.

                                      7                             A-4300-16T4
