Grandparent Rights

1. Law Lessons from DelPizzo v. Costanzo (App. Div., Docket No. A-0864-04T1, Decided October 25, 2005, not approved for publication):
   
   Grandparents may seek visitation rights with a grandchild under the grandparent visitation statute, N.J.S.A. 9:2-7.1, which provides in pertinent part as follows:
   
   A grandparent or any sibling of a child residing in this State may make application before the Superior Court, in accordance with the Rules of Court, for an order for visitation. It shall be the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best interests of the child.
   
   The statute "represents part of a favored public policy that grandparents are in a special relationship to their grandchildren." S.M. v. A.W., 281 N.J. Super. 63, 70-71 (App. Div.), certif. denied, 142 N.J. 571 (1995); see Moriarity v. Bradt, 177 N.J. 84, 97 (2003) (confirming "the importance of the grandparent-grandchild relationship in the lives of children"), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004); Mimkon v. Ford, 66 N.J. 426, 436 (1975) (finding grandparents can provide children with "unconditional love and acceptance, which complements rather than conflicts with the role of the parents").
   
   By the same token, "a fit parent has a fundamental due process right to the care and nurturance of his or her children, [and] that right is protected where a nonparental visitation statute respects a fit parent's decision regarding visitation by (1) according him or her the 'traditional presumption' that a fit parent acts in the best interests of the child; and (2) giving 'special weight' to a fit parent's determination regarding visitation." Moriarity, supra, 177 N.J. at 108; Wilde v. Wilde, 341 N.J. Super. 381, 397 (App. Div. 2001) ("Because the litigation itself 'implicates' the parent's constitutional rights, a grandparent's statutory right to hale a parent into court must be carefully circumscribed, particularly where, as here, the parent's fitness is not disputed").
   
   "Thus, although as a general proposition the grandparents' role in a child's life may be very important, each case in which grandparents are pitted against parents over visitation with grandchildren must stand or fall on its own facts." Moriarity, supra, 177 N.J. at 98.
   
   To overcome the presumption in favor of a fit parent's decision, New Jersey courts require a threshold showing of harm prior to utilizing the best-interests analysis. Id. at 116-17 (adopting "harm standard" when fit parent is in dispute with third party over visitation or custody); Watkins v. Nelson, 163 N.J. 235, 248 (2000) (requiring "proof of serious physical or psychological harm or substantial likelihood of harm" before deciding whether awarding custody to third party would promote best interests of child); Mizrahi v. Cannon, 375 N.J. Super. 221, 231-32 (App. Div. 2005) ("to withstand judicial scrutiny, grandparents seeking visitation under the statute [N.J.S.A. 9:2-7.1] must prove by a preponderance of the evidence that denial of the visitation they seek would result in harm to the child"). It is not sufficient, however, for grandparents to propose "[c]onclusory, generic items, such as 'loss of potentially happy memories'" as proof of harm. Id. at 234. Rather, grandparents seeking visitation rights under N.J.S.A. 9:2-7.1 "must establish that denying visitation would wreak a particular identifiable harm, specific to the child, to justify interference with a parent's fundamental due process right to raise a child free from judicial interference and supervision." Ibid. To show harm, "[t]he grandparents' evidence can be expert or factual." Moriarity, supra, 177 N.J. at 117. For example, grandparents "may rely on the death of a parent . . . . 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." Ibid. Grandparents also may rely upon expert testimony to assess the effect of the termination of a long-standing relationship between the grandparents and children to form the basis for a finding of harm. Ibid. In determining harm, courts also should consider the grandparents' mistreatment or behavior toward the defendant. Wilde, supra, 341 N.J. Super. at 399 (finding "grandparent cannot demean a parent . . . and then insist the parent engage in psychological therapy").



2. Law Lessons from Daniels v. Daniels (App. Div., Docket No. A-7123-03T1, approved for publication November 16, 2005):
   
   As originally enacted, the Grandparent Visitation Statute, N.J.S.A. 9:2-7.1, did not apply to "'intact families' (those not disrupted by death or divorce)." Moriarty v. Bradt, 177 N.J. 84, 99 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). In 1993, the GVS was amended to extend visitation rights to grandparents even where both parents were living as an intact family. However, as the result of the Supreme Court's decision in Moriarty v. Bradt, supra, the scope of the statute was significantly curtailed. In Moriarty, the Court held, as a matter of constitutional law, that grandparent visitation could not be ordered without a showing that the child would be harmed without such visitation.
   
   Moriarty drew upon a prior decision, Watkins v. Nelson, 163 N.J. 235 (2000), which held that custody disputes between a parent and any third party require a two–step analysis in which the court must first find exceptional circumstances (e.g., harm to the child) and then must weigh the best interests of the child with respect to the issue of custody. Watkins, supra, 163 N.J. at 253-54. Absent exceptional circumstances, however, there is no basis to interfere with the parent's constitutional right to the "'custody, care and nurture of the child.'" Id. at 254, quoting Ginsberg v. New York, 390 U.S. 629, 639, 88 S. Ct. 1274, 1280, 20 L. Ed. 2d 195 (1968). While a loving relationship with grandparents is deemed valuable, the denial of which might result in some harm to any child, the type of harm to which Moriarty referred must be something more substantial. It must be the kind of significant harm that Watkins recognized as justifying State intervention in the parent-child relationship.
   
   Absent the requirement of some special need for continued contact, 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. In order to avoid imposing an unnecessary and unconstitutional burden on fit parents who are exercising their judgment concerning the raising of their children, courts must focus first on whether the grandparent has made a clear and specific allegation of concrete harm to the children. Mere general and conclusory allegations of harm are insufficient.
   
   Grandparents seeking visitation must be held to a higher standard than the generalities normally acceptable as notice pleading. "Before a parent or parents are called upon to litigate fully a grandparent visitation complaint, with all the attendant stress and expense, the grandparent or grandparents should make an initial showing that satisfies a judge that the burden of proof . . . can be met." Therefore, "any complaint filed under the statute should be detailed and verified or be accompanied by a detailed and verified affidavit setting out the factual basis relied on by the plaintiffs to justify relief."
   
   Also, as set forth in Wilde v. Wilde, 341 N.J. Super. 381, 397 (App. Div. 2001), grandparents are required to attempt to amicably resolve visitation disputes before initiating litigation.  [See: Grandparent Visitation Mediation]
   
   
3. Law Lessons from KAMEN v. EGAN (App. Div., A-7046-03T5, April 26, 2006, not approved for publication):
   
   While a grandparent has no legal obligation to support a grandchild, exceptions to this general rule are imposed when the grandparent obtains legal custody, guardianship or acts in loco parentis. Watkins v. Nelson, 163 N.J. 235, 253-54 (2000); A.N. ex rel. S.N. v. S.M., 333 N.J. Super. 566, 572 (App. Div.), certif. denied, 166 N.J. 606 (2000); Savoie v. Savoie, 245 N.J. Super. 1, 4 (App. Div. 1990). Although the child support guidelines refer to income of the "parents," a grandparent is subject to the guidelines in these unusual circumstances. Tash v. Tash, 353 N.J. Super. 94, 100-01 (App. Div. 2002). In Tash it was held that a grandparent's household income should be considered in calculating support under the guidelines even when a support obligation does not exist. Ibid.
   
   While the guidelines are applicable in instances where grandparents are legal custodians, there are circumstances when a court may modify or even disregard the child support guidelines. N.J.S.A. 9:17-53(e) gives discretion to deviate after consideration of certain relevant factors, and the guidelines themselves state that a departure from the guidelines is justified by good cause. Rule 5:6A; Pressler, Rules Governing The Courts of the State of New Jersey, Appendix IX-A, "Considerations In Use of Child Support Guidelines," subpart 9 (2006).



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