Grandparents' Rights Follow Specific Facts

In the grandparent rights case of C.C. v. M.H., Plaintiffs C.C. and D.C. sought visitation under the Grandparent Visitation Act, N.J.S.A. 9:2-7.1.2. The Plaintiffs based their case on the claim they were “psychological parents” to their grandchildren. Defendants have two children, ages 2 and 3. In 2013, Plaintiffs began caring for their grandchildren two days per week and they were being cared for by a nanny, and later in pre-school, three days per week. The parties dispute whether the Plaintiffs contributed some financial support to the grandchildren but do not dispute that Plaintiffs took the entire family on a vacation to Disney World. During the vacation, Plaintiffs and Defendants had a serious falling out over M.H.’s relationship with S.H. Thereafter, the grandchildren were enrolled in full-time pre-school and the Defendants relocated to a new community which Plaintiffs considered too far to visit. By September 2016, there was no contact between the Plaintiffs and grandchildren. The Plaintiffs complaint for visitation included that they “enjoyed a loving and caring relationship with their grandchildren since their birth on a daily basis”, “seeing them multiple times per week”, overnights as needed when the Defendants wanted to go out, family vacations and the like. Plaintiffs also contended that it would be likely the children would suffer irreparable harm if contact between the grandchildren and Plaintiffs was not restored. In support of their argument, Grandparents submitted a report from a psychologist that never met the grandchildren which provided generalizations in favor of the Plaintiffs’ case. Defendants filed replies and a cross-motion for restraints to keep the Plaintiffs away from the children. Defendants described the way Plaintiffs would start arguments with the Defendants in front of the children and the fact that the Defendants feared that the children would be exposed to similar treatment. The Defendants greatly disputed the amount of time with and care from the Plaintiffs. Defendants also filed a statement from M.H.’s sister indicating the Plaintiffs were often verbally abusive to family members and went for extended periods of time without seeing members of the family for that reason. The trial court determined that the grandparents failed to meet the burden of demonstrating that the children would suffer harm without the visitation and denied the grandparents relief, specifically because the grandparents did not indicate that they lived with the children. Plaintiffs appealed. The appellate division determined that Plaintiffs failed to establish “concrete harm” as set forth in Daniels v. Daniels, 381 N.J. Super. 286, 294 (App. Div. 2005). Further, pursuant to Morairty v. Bradt, 177 N.J. 84, 103 (2003), there is a fundamental right to parental autonomy in decisions affecting the “care, custody and control” of one’s own children which right shall yield only to a compelling state interest. Finding that the trial judge correctly decided that the Plaintiffs did not meet the burden of demonstrating irreparable harm, the appellate division affirmed the decision of the court below. If you are a grandparent seeking to obtain visitation or a parent fighting to prevent grandparent visitation, you should discuss your case with an experienced family law attorney in order to learn your rights. For more information about custody or grandparent visitation, visit DarlingFirm.com or call 973-584-6200 now to set up a consultation. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Grandparent Visitation Denied Without Showing Of Harm To Grandchildren

In Loser v. Witt, the Plaintiffs appealed the dismissal of their Complaint seeking grandparent visitation. The Appellate Division affirmed the decision of the Family Court. In 2005, the Defendants, Melissa Witt and Eric Loser were living together along with Melissa's son from a previous relationship, when Melissa gave birth to their son. The Plaintiffs in this case are Eric's parents. In 2007, Melissa and Eric split up which resulted in litigation with regard to child custody, upon which the relationship between Melissa and the Plaintiffs, Eric's parents, deteriorated. Eventually Melissa and Eric resolved their differences but the relationship between Melissa and the Plaintiffs never recovered. In 2013, Eric disallowed the Plaintiffs from having any contact with the children. Eric believed, at the time, that his father was harassing Melissa and attempting to undermine her relationships with the children. In August of that year, the Plaintiffs filed a Complaint in the Family Court seeking visitation with their grandchildren. The Plaintiffs requested a plenary hearing and the opportunity to conduct a psychological evaluation of the children. The Plaintiffs contended that they had a very close relationship with the children - seeing them two to three times a week and had taken them on annual vacations. They admitted though that they were never full time care-takers. After oral argument, the Family Court judge dismissed the Plaintiff's Complaint concluding that the Plaintiffs "failed to meet the required threshold showing of [particularized] harm to subject the parents and the children to further litigation." The Plaintiffs appealed. According to the Appellate Division, parents have a fundamental right to "make decisions regarding the care and custody of their children." Moriarty v. Bradt, 177 N.J. 84,88, 827 A.2d 203 (2003). Ordinarily, courts do not interfere with a fit parent's decision to prevent contact between his or her child and the child's grandparents. Rente v. Rente, 390 N.J. Super. 487, 493, 915 A.2d 1099 (App. Div. 2007). Grandparents can force "grandparent visitation over the wishes of a fit parent" if they can prove by a preponderance of the evidence that visitation is necessary to avoid harm to the child. Moriarty, supra, 177 N.J. at 115, 117. To persuade the court that a child will be harmed by the absence of visitation, grandparents may present either expert or factual evidence. First, grandparents must make a "clear and specific allegation of concrete harm to the children." Daniels v. Daniels, 381 N.J. Super. 286, 294, 885 A.2d 524 (App. Div. 2005). In this case, the Appellate Court found that the Plaintiffs have not alleged concrete facts demonstrating that the Defendant's parental decision to prohibit contact will cause significant harm to the children. Therefore, the decision of the Family Court was affirmed. Child custody and grandparent's rights cases are of the most emotional and difficult cases in all of family law. If you anticipate that you may want to petition the court for a modification of your current child custody arrangement it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about child custody, parenting time, child support, or other family law matters in New Jersey visit the DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Battle Over Grandparent Visitation Rights

In the recent NJ Appellate Division case, Major v. Maguire, grandparent visitation rights were sought pursuant to N.J.S.A. 9:2-7.1, but the case was dismissed by the Family Court because the Plaintiff's failed to make a prima facie case. The Plaintiffs, Anthony and Suzanne Major are the paternal grandparents of a 6 year old girl who was referred to as "Jane" for the purposes of the court's opinion to protect her privacy. The Defendant, Julie Di Liberto is Jane's biological mother and unfortunately, Jane's father died two months before the Plaintiff's filed their complaint seeking visitation with their grandchild under a New Jersey statute, N.J.S.A. 9:2-7.1. The Family Court dismissed the Plaintiff's complaint without conducting an evidentiary hearing or allowing the parties to engage in discovery. In addition, the court did not hold a case management conference or otherwise make any effort to indentify the issues in the case or attempt any mediation or settlement offers. In the appeal, the Plaintiff's argued that the Family Court erred in dismissing their complaint because they believed that they established a prima facie case to obtain the relief they were seeking as required by N.J.S.A. 9:2-7.1 and Moriarty v. Bradt, 177 N.J. 84 (2003). Further, the Plaintiff claimed that the court abused its discretion in not allowing discovery or testimony on the issue. The Defendant argued that the trial court properly dismissed the complaint because the Plaintiff's failed to overcome her valid objections to visitation being that she is Jane's mother. Also, Defendant argued that the court did not abuse its discretion under Rule 5:5-4(a) in denying discovery or conducting a case management conference because the nature of the action required an expedited resolution. The Appellate Court remanded the case back to the Family Court to adjudicate the grandparent visitation issue under the procedural guidelines held in R.K. v. D.L., 434 N.J. Super. 113, 137-40 (App. Div. 2014). The Appellate Division directed that the lower court apply the statutory standards that were established in N.J.S.A. 9:2-7.1 and the procedural and substantive approach that the Family Court must use in adjudicating grandparent visitation complaints, as this approach is grounded in the constitutional concerns expressed in the Moriarty decision and in N.J.S.A. 9:2-7.1. According to the statute, the court must consider the following factors in making its decision to award visitation to a grandparent: • The relationship between the child and the grandparent seeking visitation rights • The amount of time since the child had contact with the grandparent • The relationship between each of the child's parents or the person with whom the child is living and the grandparent • The effect that such visitation will have on the relationship between the child and the child's parents or the person with whom the child is living • The good faith of the grandparent who is seeking visitation • If the parents are divorced or separated, the parenting time arrangement that exists between the child and his or her parents • Any history of physical, emotional, or sexual abuse or neglect by the applicant • Any additional factor relevant to the best interest of the child If you anticipate that you would like to petition the court to obtain grandparent's visitation rights it is imperative that you seek out the advice of an experienced attorney who can evaluate your case and advise you on your rights and obligations. For more information about grandparent visitation rights, custody and visitation, parenting time, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.