                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-2587-16T2
W.A.D.,

          Plaintiff-Respondent,

v.

R.M.C.,1

     Defendant-Appellant.
___________________________

                    Argued September 18, 2018 – Decided October 5, 2018

                    Before Judges Yannotti, Rothstadt and Gilson.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Essex County, Docket
                    No. FD-07-4283-15.

                    Angela M. Scafuri argued the cause for appellant
                    (Wilentz, Goldman & Spitzer, PA, attorneys; Angela
                    M. Scafuri, on the briefs).

                     Theresa A. Lyons argued the cause for respondent
                    (Lyons & Associates, PC, attorneys; Theresa A. Lyons,
                    Chris A. Wright and Joanna R. Adu, on the brief).


1
  We use initials to identify the parties and others involved in this dispute in
order to protect their identities.
PER CURIAM

      Defendant appeals from the trial court's order dated November 18, 2016,

which declared plaintiff the psychological parent of the minor child G.M., and

ordered that the parties would share joint legal custody, with plaintiff designated

the parent of primary residence (PPR). Defendant also appeals from an order

dated January 12, 2017, which denied her motion for reconsideration.

                                        I.

     The parties met in 2009 when defendant, a licensed practical nurse, was

taking care of plaintiff's mother at a nursing facility. They became friends and

soon began what defendant describes as an intimate personal relationship. In

the fall of 2009, defendant moved into plaintiff's single-family home in West

Orange.    In the spring of 2011, because of certain difficulties in their

relationship, defendant moved into a separate apartment in Clark, although the

parties remained in contact. One of the reasons for the parties' difficulties was

their differing attitudes towards children.     Plaintiff was reluctant to have

children because of her age and her career.

      In July 2011, defendant completed a training program so that she could

become licensed by the Division of Child Protection and Permanency (Division)

as a foster parent. G.M. was born on December 3, 2011. Later that month, the


                                                                           A-2587-16T2
                                        2
Division contacted defendant and told her that the child could be placed with

her immediately. The parties picked up the child at the hospital. Thereafter,

defendant and G.M. moved into plaintiff's residence, which the Division had

certified as a resource home. The parties agreed that G.M. would call plaintiff

"Mamma" and defendant "Mommy."

      In 2013, the parties learned that G.M. had a brother, and the Division

asked the parties if they wanted to adopt G.M.'s brother so that the brothers

would be together in the same home. Defendant wanted to adopt G.M.'s brother,

but plaintiff did not. This disagreement led to a deterioration in the parties'

relationship. Eventually, G.M.'s brother was adopted by his resource parents.

      It appears that the parties both intended to adopt G.M., but they were

concerned the adoption could be delayed because they were a same-sex couple.

In order to expedite the matter, the parties agreed that the adoption would

proceed in defendant's name only, with plaintiff's name added later. Defendant

adopted G.M. on November 22, 2013. At the time, defendant was living in

plaintiff's home.

      In 2014, the parties' relationship continued to deteriorate and plaintiff

encouraged defendant to begin dating others. In June 2014, defendant began a




                                                                       A-2587-16T2
                                      3
relationship with C.M.C. In August 2014, defendant moved out of plaintiff's

home and moved in with C.M.C.

      In June 2015, plaintiff commenced this action seeking joint legal and

physical custody of G.M. Plaintiff also sought to have her name be placed on

G.M.'s birth certificate as a parent, and to have G.M.'s last name hyphenated to

reflect the surnames of both parents.2 The Family Part entered an order which,

among other things, scheduled the matter for a plenary hearing; temporarily

granted defendant sole legal and residential custody; appointed Lucy Agostini

as guardian ad litem for the child; appointed Dr. Sharon Ryan Montgomery to

determine whether there was a psychological bond between plaintiff and G.M.;

and directed plaintiff to deposit $40,000 in a fund to cover the costs of this

litigation.

      In July 2015, defendant married C.M.C.       Plaintiff later amended her

complaint to add a count seeking to be designated the PPR for the child. In




2
   In November 2015, plaintiff filed a separate complaint in Essex County to
adopt G.M. That same month, C.M.C. filed a complaint in Union County to
adopt the child. The court dismissed the complaint without prejudice and
C.M.C. appealed. In an opinion also filed this date in A-1600-17, we affirm the
dismissal of C.M.C.'s complaint.


                                                                        A-2587-16T2
                                       4
February 2016, the court ordered plaintiff to deposit an additional $40,000 in

the litigation fund.

        Thereafter, Judge Craig R. Harris conducted a trial in the matter. On

November 18, 2016, the judge filed a written opinion in which he concluded that

plaintiff met the criteria in V.C. v. M.J.B., 163 N.J. 200, 223 (2000), and

established she is a psychological parent of the child. The judge also found it

would be in the child's best interests if the parties shared joint legal custody,

with plaintiff designated as the PPR. In addition, the judge granted plaintiff's

application to have her name placed on the child's birth certificate, and to have

the child's last name reflect the surnames of both parents.          The judge

memorialized his findings of fact and conclusions of law in an order entered on

the same date. On January 12, 2017, the judge denied defendant's motions for

reconsideration and for a stay pending appeal. This appeal followed.

                                       II.

        On appeal, defendant argues that the trial court erred by allowing her

attorney to withdraw from the case about three weeks before the scheduled trial

date.

        The record shows that on March 22, 2016, defendant's attorney filed a

motion seeking leave to withdraw from the case because defendant owed her


                                                                         A-2587-16T2
                                       5
firm more than $100,000 in attorney's fees. The court considered the motion on

April 8, 2016, and placed its decision on the record. The court pointed out that

defendant had signed a retainer agreement, which stated that counsel could ask

the court for permission to withdraw if defendant did not pay the fees in a timely

manner.

      The court noted that it had scheduled the trial to begin in about three

weeks, and this weighed against granting the application. The court stated,

however, that the case already had been pending for about ten months, and cases

of this sort ordinarily should be completed in ninety days. The court observed

that the case was not complex, defendant had the opportunity to retain new

counsel, and new counsel would have time to "get up to speed" in the case.

      The court also observed that although defendant had paid a significant

amount of her attorney's fees, she had sufficient income to pay "much more."

The court further found that substantial, additional attorney's fees would be

incurred to complete the case, and the likelihood defendant would pay those fees

was "pretty minimal." Balancing all of these factors, the court decided counsel

should be permitted to withdraw.

      "An attorney who appears of record may withdraw from a case for

justifiable and lawful cause, after giving proper notice and obtaining leave of


                                                                          A-2587-16T2
                                        6
court." Jacobs v. Pendel, 98 N.J. Super. 252, 255 (App. Div. 1967).            The

decision of whether to permit an attorney to withdraw is committed to the sound

discretion of the court. Ibid. Withdrawal may be permitted if the client fails or

refuses to pay his or her attorney's fees, after a reasonable demand for payment.

Ibid.

        In deciding whether to grant a motion to withdraw, the court should

consider, among other relevant factors

             the terms of the written retainer agreement and whether
             either the attorney or the client has breached the terms
             of that agreement; the age of the action; the imminence
             of the scheduled trial; the complexity of the issues; the
             ability of the client timely to retain substituted counsel;
             the amount of fees already paid by the client to the
             attorney; the likelihood that the attorney will receive
             payment of any balance due under the retainer
             agreement if the matter is tried; the burden on the
             attorney if the withdrawal application is not granted;
             and the prejudice to the client or to any other party.

             [R. 5:3-5(e)(2).]

        Here, the record shows that when defendant's attorney sought leave to

withdraw, defendant owed counsel more than $100,000 in fees. The court found

that defendant had sufficient funds to pay her attorney more than she paid, and

that it was unlikely she would be able to pay the additional fees that would be




                                                                           A-2587-16T2
                                         7
incurred to complete the case. In addition, the court weighed all of the other

relevant factors in determining whether to allow counsel to withdraw.

      Although defendant argues that it was too close to the scheduled trial date

to permit counsel to withdraw, it is undisputed that defendant was able to retain

new counsel before the trial began. In addition, the trial judge indicated that he

could only try the case on two days during any week. The trial commenced on

May 10, 2016, and was not concluded until September 23, 2016. Therefore,

counsel had sufficient time to become familiar with the case. Furthermore,

defendant has not shown that she was prejudiced by the court's determination.

We conclude the court's decision to allow counsel to withdraw was not a

mistaken exercise of discretion.

                                        III.

      Next, defendant argues that the trial judge erred by denying her new

attorney's application to adjourn the trial. As stated previously, on April 8, 2016,

the court permitted defendant's attorney to withdraw from the case. The trial in

the matter was then scheduled to begin on May 3, 2016. Defendant retained new

counsel, and on April 15, 2016, counsel sought an adjournment of the trial. The

court denied the application.




                                                                            A-2587-16T2
                                         8
        We review a trial court's decision denying an application for an

adjournment for abuse of discretion. Kosmowski v. Atl. City Med. Ctr., 175

N.J. 568, 573-74 (2003). We will only reverse the court's determination when

it "appears that an injustice has been done."       Rocco v. N.J. Transit Rail

Operations, 330 N.J. Super. 320, 343-44 (App. Div. 2000). In deciding whether

to reverse the trial court's decision, we consider all relevant factors, including

the length of the delay, whether similar requests had previously been made and

granted, the inconvenience to other parties and the court, whether denying the

application would result in prejudice to the party seeking the adjournment, and

the complexity of the case. State v. Hayes, 205 N.J. 522, 538 (2011).

        The record shows that when defendant requested the adjournment, the

case had already been on the court's calendar for about ten months, which was

longer than usual for a case of this sort. Moreover, the judge's schedule only

permitted him to conduct the trial on two days during any week. The trial

ultimately began on May 10, 2016 and did not conclude until September 23,

2016.    This afforded defendant's new attorney sufficient time in which to

become familiar with the case. In addition, defendant has not shown that she

was prejudiced by the court's decision. We therefore conclude that the denial of




                                                                          A-2587-16T2
                                        9
defendant's application for an adjournment was not a mistaken exercise of

discretion.

                                       IV.

      Defendant contends the trial court erred by ordering the parties to make

equal contributions to the litigation fund to pay the additional expenses that

would be incurred to complete the trial. We note that Rule 5:3-5(c) expressly

authorizes the court to make a pendente lite allowance for "prospective services

likely to be performed," taking into account "the respective financial

circumstances of the parties."

      As noted, after plaintiff filed her complaint, the court ordered the parties

to establish a fund to pay the costs of this litigation, and plaintiff was required

to deposit about $80,000 in the fund.        Before the start of trial, the court

anticipated that the expenses for the two expert witnesses would be $70,000, and

directed both parties pay $35,000, in monthly installments of about $4000 a

month, into the fund. After the trial began, the judge determined that the parties

should continue to make those payments.

      On appeal, defendant argues that the court erred by requiring her to

contribute to the litigation fund. She notes the judge relied upon the case

information statements (CISs) the parties had filed with the court, but asserts the


                                                                           A-2587-16T2
                                       10
court's reliance upon the CISs resulted in "faulty financial accounting." She

contends the court failed to recognize the income disparity between the parties,

and that she was not working. She also argues the court erred by failing to

conduct an ability-to-pay hearing.

      Defendant's arguments lack sufficient merit to warrant extended

discussion. R. 2:11-3(e)(1)(E). We note, however, that prior to trial, plaintiff

had contributed $80,000 to the fund, and the court anticipated that additional

expenses of $70,000 would be incurred before the matter was concluded. The

court decided that the parties should share these additional expenses equally. In

making that determination, the judge relied upon the CISs filed by the parties,

which provided sufficient information for the court's decision. Therefore, the

court was not required to conduct an ability-to-pay hearing.

                                       V.

      Defendant argues that the judge erred by finding plaintiff was the

psychological parent of G.M. We disagree.

      We note that the scope of our review of factual determinations of the

Family Part is limited. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J.

420, 448-49 (2012). The trial court's findings of fact are binding on appeal when

supported by adequate, substantial and credible evidence. Cesare v. Cesare, 154


                                                                         A-2587-16T2
                                      11
N.J. 394, 411-12 (1998). We must accord deference to the trial judge's factual

findings when they are based on the judge's familiarity with the case,

opportunity to make credibility judgments based on live testimony, and

expertise in family matters. F.M., 211 N.J. at 448. We note, however, that, "[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. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

      "The right of parents to the care and custody of their children is not

absolute." V.C., 163 N.J. at 218. A third party may seek custody of another

person's child in "exceptional circumstances." Id. at 219. The psychological

parenting doctrine is based on the "recognition that children have a strong

interest in maintaining the ties that connect them to adults who love and provide

for them." Id. at 221.

      To demonstrate the existence of a parent-like relationship with a child, a

third party must establish:

            (1) that the biological or adoptive parent consented to,
            and fostered the petitioner's formation and
            establishment of a parent-like relationship with the
            child; (2) that the petitioner and the child lived together
            in the same household; (3) that the petitioner assumed
            the obligations of parenthood by taking significant
            responsibility for the child's care, education and
            development, including contributing towards the child's

                                                                          A-2587-16T2
                                       12
            support, without expectation of financial compensation
            [a petitioner's contribution to a child's support need not
            be monetary]; and (4) that the petitioner has been in a
            parental role for a length of time sufficient to have
            established with the child a bonded, dependent
            relationship parental in nature.

            [Id. at 223 (quoting In re Custody of H.S.H.-K, 533
            N.W.2d 419, 421 (Wis. 1995)).]

      Once the court has determined that the third party is a psychological

parent to a child, "he or she stands in parity with the legal parent." Id. at 227.

Custody and visitation issues are determined based on the best-interests-of-the-

child standard, "giving weight to the factors set forth in N.J.S.A. 9:2-4." Id. at

227-28.

      Here, Judge Harris held that plaintiff met the four-prong test under V.C.

and established that she is a psychological parent to G.M. The judge found that

plaintiff had presented overwhelming evidence showing that defendant had

consented to and fostered the parental relationship between G.M. and plaintiff.

In support of this finding, the judge relied upon the testimony of Dr.

Montgomery and the guardian ad litem, which the judge found compelling.

      The judge pointed out that with defendant's consent, G.M. referred to

plaintiff as "Mamma" and had been doing so since he could speak. The judge

pointed out that both parties were referred to as the child's foster parents in


                                                                          A-2587-16T2
                                       13
various documents, and that defendant wanted to add plaintiff's name to the

adoption. Furthermore, both parties' names appeared on holiday cards and

birthday party invitations.     The judge also rejected defendant's claim that

plaintiff did not qualify as a psychological parent because plaintiff had not

wanted children and was not involved in the decision to adopt.

      The judge further found that G.M. had resided with plaintiff. The judge

acknowledged that defendant had stayed at home for the first ten months after

the child was adopted, and that initially plaintiff was not as actively involved in

parenting G.M. as defendant because defendant had a medical background. The

judge also observed that G.M.'s health care providers had recognized defendant

as the child's only legal parent.

      The judge found, however, that plaintiff became more actively involved

in parenting the child when she was not working. She interacted regularly with

personnel at the schools G.M. attended. In addition, school records referred to

both parties as the child's "parents." The judge noted that even after defendant

moved out of plaintiff's home, plaintiff continued to take G.M. to school and

participate in school events.

      The judge found that plaintiff took significant responsibility for the child's

care, education, and development. The judge also found that plaintiff had


                                                                            A-2587-16T2
                                       14
provided substantial financial contributions to support defendant and G.M.,

without any expectation of repayment, but the judge did not give inordinate

weight to this evidence.      The judge rejected defendant's contention that

plaintiff's relationship with G.M. was merely that of a babysitter.

      The judge further found that it was "undeniable that a parent-child bond

has been formed" between G.M. and plaintiff.           The judge noted that Dr.

Montgomery had testified that G.M. would suffer psychological harm if his

relationship with plaintiff was severed. Dr. Montgomery also had stated that

G.M. viewed plaintiff as a parental figure.       In addition, Elizabeth Smith,

plaintiff's psychological expert, and the guardian ad litem for the child agreed

that G.M. had a significant attachment to plaintiff.

      On appeal, defendant concedes that G.M. developed a parental bond with

plaintiff, and that she and plaintiff had lived together with the child. Defendant

argues, however, that plaintiff failed to establish that defendant consented to the

parent-child relationship. She claims she did not delegate any of her parental

duties to plaintiff.

      Defendant further argues that although plaintiff provided financial support

for the child, this was not enough to satisfy the third prong under V.C. She

claims plaintiff only took on a "playful caretaker role," and plaintiff's


                                                                           A-2587-16T2
                                       15
involvement with G.M.'s schooling was limited. Defendant also argues that the

judge failed to give sufficient weight to the fact that plaintiff did not formalize

her relationship with G.M. by filing for a separate adoption or becoming a foster

parent.

      We find no merit in these contentions. We are convinced there is sufficient

credible evidence in the record to support the trial court's finding that plaintiff

was a psychological parent to G.M. under the criteria established in V.C.

Defendant's arguments to the contrary lack sufficient merit to warrant further

discussion. R. 2:11-3(e)(1)(E). We affirm the determination that plaintiff is

G.M.'s psychological parent substantially for the reasons stated by Judge Harris

in his thorough and well-reasoned opinion.

                                        VI.

      Defendant also argues that the judge erred by granting plaintiff joint legal

custody and designating plaintiff as the PPR. Defendant maintains the judge

erred by rejecting the guardian ad litem's recommendation that neither party be

designated as the PPR. She contends the judge failed to give sufficient weight

to her status as the adoptive parent.

      As we stated previously, where, as here, a court has found that a third

party is the psychological parent of a child, the court must consider the best


                                                                           A-2587-16T2
                                        16
interests of the child in determining custody and related issues, giving weight to

the factors in N.J.S.A. 9:2-4. V.C., 163 N.J. at 227-28. Therefore, in deciding

custody, the court must consider the following:

            the parents' ability to agree, communicate and
            cooperate in matters relating to the child; the parents'
            willingness to accept custody and any history of
            unwillingness to allow parenting time not based on
            substantiated abuse; the interaction and relationship of
            the child with its parents and siblings; the history of
            domestic violence, if any; the safety of the child and the
            safety of either parent from physical abuse by the other
            parent; the preference of the child when of sufficient
            age and capacity to reason so as to form an intelligent
            decision; the needs of the child; the stability of the
            home environment offered; the quality and continuity
            of the child's education; the fitness of the parents; the
            geographical proximity of the parents' homes, the
            extent and quality of the time spent with the child prior
            to or subsequent to the separation; the parents'
            employment responsibilities; and the age and number
            of the children. A parent shall not be deemed unfit
            unless the parents' conduct has a substantial adverse
            effect on the child.

            [N.J.S.A. 9:2-4(c).]

      Here, the judge considered these factors and found that defendant fell

short in terms of her ability to cooperate with plaintiff regarding G.M. The judge

noted that defendant had unilaterally removed G.M. from his school district,

relocated to a different county, registered the child in a new school, and refused

to disclose her new address to plaintiff without a court order. The judge also

                                                                          A-2587-16T2
                                       17
noted that defendant had repeatedly failed to inform plaintiff about G.M.'s

medical providers. In addition, defendant had sought to deny plaintiff parenting

time during a holiday, publicly disparaged plaintiff on social media, and refused

to allow G.M. to participate in a certain activity with plaintiff's family.

      The judge noted that Dr. Smith had opined defendant did not have the

ability to agree, communicate and cooperate. The judge found Dr. Smith's

opinion to be "compelling." The judge pointed out that Dr. Smith stated that the

degree of vitriol, especially on defendant's part, was affecting G.M., and had the

potential to cause him to sustain "significant and lasting harm."

      The judge stated that although the parties were willing to accept shared

custody, it was "troubling" that defendant was resisting plaintiff's exercise of

the parenting role, and that defendant had no intention of facilitating the exercise

of parenting time going forward. The judge added that G.M. "clearly loves both

parties," but his teachers reported that he requested plaintiff when he was upset.

In addition, Dr. Smith concluded that defendant displayed a "dramatic failure in

empathy" and was not able to separate G.M.'s need to maintain a relationship

with plaintiff from her own needs.

      The judge also noted that plaintiff had lived in the same residence for

fifteen years, whereas defendant had lived in several different homes since she


                                                                              A-2587-16T2
                                        18
began her relationship with C.M.C. The judge deemed this significant because

G.M. is a special needs child and he requires "stability and continuity" in his

education. The judge found that the applicable factors weighed in favor of

having the parties share joint legal custody of the child. The judge also found

that designating plaintiff as the PPR was in G.M.'s best interests.

      On appeal, defendant argues that the factors in N.J.S.A. 9:4-2(c) weigh in

her favor. She contends the trial judge ignored evidence that she and plaintiff

could work together, and the evidence shows plaintiff has not taken any role in

fostering a relationship between G.M. and his brother. She also contends the

needs of the child weigh heavily in her favor because she is a nurse and plaintiff

has been insufficiently involved in G.M.'s medical care. In addition, defendant

asserts her home is more stable than plaintiff's home, and that the extent and

quality of the time spent with the child prior to or after the parties' separation

weighs in her favor. Defendant also contends the judge erred by failing to give

substantial weight to the views of the guardian ad litem, who recommended that

neither party be designated as the PPR.

      We note that in child custody matters, the trial court's findings of fact and

conclusions of law are entitled to great weight and will not be lightly disturbed

on appeal. DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976). Here,


                                                                           A-2587-16T2
                                       19
there is sufficient credible evidence in the record to support the judge's findings

of fact and conclusion that the parties should share legal custody of the child,

with plaintiff designated as the PPR.

      The evidence supports the judge's finding that the parties did not have the

ability to communicate and cooperate in matters relating to the child, as shown

by defendant's animosity towards plaintiff and the ongoing litigation between

the parties. The evidence also shows that despite defendant's claim to the

contrary, plaintiff was willing to foster a relationship between G.M. and his

brother.

      In addition, there is no evidence in the record that plaintiff was ever

inattentive or uninvolved with G.M.'s behavioral issues or medical needs. The

record also does not support defendant's claim that she has the more stable home.

While defendant did spend more time with G.M. before the parties separated.

The parties have spent roughly the same amount of time with G.M. since that

time. Moreover, G.M. has expressed a preference for living with plaintiff.

      Finally, although the guardian ad litem recommended that neither party be

designated as the PPR, Dr. Smith offered a contrary opinion. She stated that

plaintiff should be named the PPR. A fact-finder has the discretion to accept or

reject an expert's testimony. Torres v. Schripps, Inc., 342 N.J. Super. 419, 430-


                                                                           A-2587-16T2
                                        20
31 (App. Div. 2001). Moreover, a fact-finder can choose to adopt or reject all

or part of an expert's testimony. City of Long Branch v. Liu, 203 N.J. 464, 491

(2010). Therefore, the trial judge was not compelled to accept the guardian ad

litem's opinion. The judge provided sound reasons for accepting Dr. Smith's

recommendation that plaintiff be designated the PPR for the child.

      Affirmed.




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                                     21
