There can be no more treasured relationship than between a grandparent and grandchild.
"The emotional attachments between grandparents and grandchildren have been described as unique in that the relationship is exempt from the psychoemotional intensity and responsibility that exists in parent/child relationships. The love, nurturance, and acceptance which grandchildren have found in the grandparent/grandchild relationship "confers a natural form of social immunity on children that they cannot get from any other person or institution." In the 70's and 80's a number of states adopted laws providing a legal right for grandparents to obtain visitation. Generally the laws seemed to work well.
Nonetheless the Supreme Court in Troxel v. Granville dramatically limited those rights.
1. Troxel v. Glaville
The right to rear one's children is embedded in our history and is as a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See Wisconsin v. Yoder, 406 U.S. 205, (1972) (explaining "primary role" of parents in raising their children as an enduring American tradition" also noting the right of parental autonomy.) "The custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder."
Prince v. Massachusetts 321 U.S. 158, 166 (1944).
Troxel involved unusual facts. Troxel, involved paternal
grandparents whose son had not married the mother before he died. The
grandparents had been given monthly visitation, but sought additional monthly visitation along
with summer visits. The Court held the State had no authority to
interfere with the parent's right to rear their child. There was
no allegation that the mother sought to discontinue visitation between the
grandparents and her children; rather, she sought to limit that visitation
to an amount that she believed was in her daughters' best interest. Id.
Moriarty v. Brandt, 177 N.J. 84 (2003) followed Troxel and sets
forth a demanding standard for the grant of grandparent visitation. A
parent is presumed to have the right to make decisions about the welfare of
her child and the statute may only intervene to protect the children
from serious physical or psychological harm. Moriarty involved facts
somewhat like Troxel. Paternal grandparents were seeking visitation
after their child had died. Some visitation was provided
but there were periodic disputes over its extent. Moriarty set
forth a demanding standard saying "interference with parental autonomy
will be tolerated only to avoid harm to the health or welfare of a child."
For those believing in the benefit of grandparent visitation, language in
the decision is unfortunate, "a dispute between a fit custodial parent and
the child's grandparent is not a contest between equals. We have long
recognized that the best interest standard, which is the tiebreaker between
fit parents, is inapplicable when a fit parent is in a struggle for custody
with a third party."
A grandparent may still satisfy the standard by showing a strong relationship wose termination would damage the child:
in every case in which visitation is denied, the grandparents bear the burden of establishing by a preponderance of the evidence that visitation is necessary to avoid harm to the child. 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 fact, many of the fifty grandparent visitation statutes specifically recognize the potential for harm when a parent has died or a family breakup has occurred and visitation is denied. 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. See, e.g., Roth, supra, 789 A.2d at 445 (noting that proof of substantial, emotional ties between child and nonparent could result in harm to child if contact with that person is denied or curtailed); Blixt, supra, 774 N.E.2d at 1060 (observing that "[t]he requirement of significant harm presupposes proof of a showing of a significant preexisting relationship between the grandparent and the child"). The possibilities are as varied as the factual scenarios presented. Moriarty v. Brandt, 177 N.J. 84 (2003)
Note Troxel and Moriarty were case with the absence of a parent. A different situation is presented may be presented in a contested divorce or post-divorce proceedings where the parties are asking the state to intervene and set down conditions of custody and visitation. If a parent had some right to visitation, ght grand-parent's arguments are helped if they are joined in a petition by the non-custodial parent.
3. Newest Word RK v. DL
Courts following Moriarty have reached differing conclusions. In
Daniels v. Daniels,
381 N.J. Super. 286 (App. Div. 2005), a grandmother sought visitation against the opposition of both parents. Give their joint opposition, the court required proof of a specific injury to the child which the grandparent could not meet.
Misrachi v. Cannon, 375 N.J. Super. 221 (App. Div. 2005) involved paternal grandparents, an absent parent, and a remarried mother. The child had lived with a grandparent for a year, and they marshalled a number of factors supporting visitation that the trial court granted. The appeals court reversed finding that while the grandparents recited various statements about injury to the chjild, they had not satisfactorily proved it.
A recent case is RK v. DL (App. Div. 2014). There the court reversed a dismissal of a claim for visitation :
Given the complexity and magnitude of the tragic facts alleged here, the court also erred by dismissing plaintiffs' complaint without affording them the opportunity to conduct discovery in order to gather sufficient evidence to overcome defendant's presumptively valid objection to grandparent visitation as Olga's father. Once discovery is completed, the court may then entertain the filing of dispositive motions, if warranted by the evidence. If motion practice proves to be an unsuitable means for resolving this dispute, the court must then conduct a plenary hearing to assess the credibility of witnesses' testimony, after they have been subjected to rigorous cross-examination.
Finally, the court also erred in concluding plaintiffs were required to present expert testimony to meet their burden of proof in this case. Grandparents can meet their burden of proof that regular contact with their grandchild is necessary to avoid harm to the child without presenting expert testimony
Our office represents grandparents seeking to continue, restore, or establish relationships with their grandchildren. Divorce can involve tremendous stress or acrimony, and a grandparent can be identified with a spouse. Our goal is to separate the grandparent's relationship and persuade either a party or a court than the grandparent relationship should continue. The children should come first, sound simple but may not translate into reality. Through negotiation or litigation, we seek to continue the vital grandparent relationship.
Law Offices of Howard A. Gutman
230 Route 206, Mount Olive, New Jersey 07836
(973) 598-1980, E-mail Howardgutman@aol.com
315 Madison Avenue, Suite 901
New York, New York 10017
FREE TELEPHONE CONSULTATION ON YOUR RIGHTS TO VISITATION AND CUSTODY