Denial Of Grandparent's Petition For Visitation Reversed

In the recent New Jersey Appellate Division case, C.D.M. v. S.M.P., a grandparent visitation case, the Appellate Division reversed the decision of the Family Court which denied a grandparent's application for visitation because the lower court did not follow the appropriate procedures in denying the petition. In this case, the Plaintiff, C.D.M. is the maternal grandmother of a little girl born in May of 2012 and whom the court identifies as "Nancy." The Plaintiff's daughter died while giving birth to Nancy. The Defendant and Nancy's biological father, S.M.P. initially tried to reach a mutually acceptable visitation arrangement with C.D.M., but in the end he denied her requests to visit Nancy or to allow Nancy to have contact with her half brother, referred to as "Nathan." The Plaintiff has legal and physical custody of Nathan. In September of 2012, the Plaintiff filed a Complaint on behalf of herself and her grandson Nathan (then five years old), asking the court to order visitation with Nancy under N.J.S.A. 9:2-7.1. S.M.P. responded to the Plaintiff's Complaint by filing a counterclaim seeking "sole custody," an accounting of any and all funds collected for Nancy's benefit upon her mother's death, and denying the Plaintiff's request for grandparent visitation. The Family Court judge stated that New Jersey's grandparent/sibling visitation statute "requires a very high showing . . . before a judge . . . who is a stranger to the child . . . can overrule a parental decision," and he was unsure if this case met that standard. The judge then asked the parties, with their attorneys to spend a few minutes to try to work something out. After a period of time, the Plaintiff's attorney reported that the parties were unable to reach a resolution. The judge emphasized that the "law presumes that a father, a mother knows what's best for a child and that . . . [he] shouldn't overrule that decision." The judge then denied Plaintiff's requested relief and dismissed her Complaint as a matter of law. The record reflects that the judge specifically declined to hear from the Defendant's attorney at the return date of the Order to Show Cause, citing that based upon what he had read in the parties' pleadings and certifications, the Plaintiff had not established a sufficient basis to overcome the Defendant's objections. Under Rule 2:5-1(b) the judge supplemented his analysis and findings once the Plaintiff appealed from his decision. According to the Appellate Division, according to R.K. v. D.L., 434 N.J. Super. 113, 137-40 (App. Div. 2014), it addressed the procedural and substantive approach the Family Part must use when dealing with grandparent visitation cases. These approaches are grounded in the concerns embedded in the State's Constitution as were expressed in the New Jersey Supreme Court decision in Moriarty v. Brandt, 177 N.J. 84 (2003) and in the state statute N.J.S.A. 9:2-7.1. The Appellate Court went on to hold that 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 court found that in this case, the trial court did not properly consider all relevant factors when it dismissed the Plaintiff's Complaint as a matter of law and therefore reversed and remanded the matter back to the trial court for a de novo re-examination of the Plaintiff's Complaint consistent with the procedures and principles set forth in R.K. If you anticipate that you would like to petition the court to obtain grandparent 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.

Psychological Parents Awarded Custody Over Great Grandparent's Objection

In the recent child custody case involving grandparent's rights, E.B.S. v. K.M., the Defendant appealed from a judgment issued by the Family Court determining that the Plaintiff is the psychological parent of a 3 year old little girl and directing that the Plaintiff shall be the joint legal custodian of the little girl with the Plaintiff as the parent of primary residence and the Defendant the parent of alternate residence. The Defendant argues in his appeal that the ruling is against the evidence that was presented at trial. The Appellate Court affirmed the Family Court's ruling. The Defendant's sixteen year old daughter gave birth to Pamela, the child at issue in this case, in 2009. The child's natural father remains unknown. The Defendant was informed by the Texas Department of Family and Protective Services that unless she agreed to take custody of Pamela, it would start the process to remove the child from her granddaughter's custody and place the child in another home. The Defendant immediately travelled to Texas to take custody of Pamela and bring her to New Jersey. The Defendant's granddaughter, Pamela's mother, then executed a voluntary surrender of her parental rights and consented to the Defendant adopting Pamela. E.B.S. is the Plaintiff and is the daughter of the Defendant's long-time friend. E.B.S. and her husband had experienced great difficulty conceiving a child of their own, and the Defendant discussed the possibility that perhaps they could adopt Pamela. In fact, the Defendant brought Pamela to meet with the Plaintiffs nine days after retrieving her from Texas and encourage the possible adoption. Thereafter, the Plaintiffs spent a great deal of time with Pamela, bought her a crib, and even hired a nanny in anticipation of adopting her. The Defendant realized from the very beginning of the process that the Plaintiffs assumed that they would be adopting Pamela and were not just temporary caretakers. Pamela lived with the Plaintiffs for the majority of 2010 and most of 2011 and became part of their family. The Defendant suffered from many health issues during this time and was unable to care for Pamela alone. Soon the Plaintiffs realized that the Defendant, who was recovering, no longer wanted to help them adopt Pamela and therefore they brought an action in the Family Court seeking permanent custody of Pamela. During the trial, a doctor testified that Pamela had bonded with the Plaintiffs and the judge found the Plaintiffs to be the psychological parents of Pamela. The judge also noted that he was certain, based upon testimony, that during the time that Pamela was living with the Plaintiffs the Defendant encouraged the relationship between the child and the Plaintiffs. Further, it was determined that the Plaintiffs has assumed the "financial obligations of parenthood." Next, the judge found that the Plaintiff's satisfied the four-prong test for finding a third party to be a psychological parent that was established in V.C. v. M.J.B., 163 N.J. 200 (2000). Then, the judge applied the criteria for custody under N.J.S.A. 9:2-4(c), and declared that the parties were joint custodians of Pamela, with the Plaintiffs being the parents of primary residence and the Defendant as the parent of alternate residence. The Defendant appealed from this decision. The Appellate Division, affirmed the lower court's finding that for child custody matters the "conclusions of a trial judge 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). In its holding, the Appellate Court found that the Family Court judge's reasoning and decision were supported by credible evidence and should not be disturbed. Child custody 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 to establish custody or modify 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, divorce, alimony, child support, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

NJ Grandparent's Visitation Rights - A Closer Look

In a previous blog post we explored the New Jersey state statute that governs grandparent's visitation rights, N.J.S.A. 9:2-7.1, upon a close look it may not be as easy for a grandparent to be granted visitation as it may initially seem. As previously stated, there is a New Jersey statute that provides that grandparents be awarded visitation with their grandchildren upon a court's analysis of a set of factors. It should be noted, that despite the statute, grandparents are rarely given liberal visitation with their grandchildren and only under unusual circumstances are such rights honored. Ultimately, a grandparent or grandparents will have to prove to a court that their grandchildren will be harmed if visitation with them is not granted. Further, the harm that the grandchildren would have to suffer is one that is more substantial than the harm that would qualify under New Jersey law that would provide visitation rights for others such as parents. Therefore, the legal threshold that a grandparent must meet in order to be given visitation rights is quite high and is rarely met. For instance, if a child would suffer significant psychological or emotional harm as a result of not having contact with his or her grandparent, then perhaps the harm would qualify as severe enough to warrant court ordered visitation. Proving significant psychological harm is not as easy as one might think at first blush. A grandparent seeking court ordered visitation would need to retain a mental health expert to conduct evaluations and bonding assessments and then conclude that substantial psychological harm would result if that grandparent were not awarded visitation rights. In addition, even if an expert recommends grandparent visitation, the inquiry does not end there. Next, the totality of the circumstances would be evaluated by the court who would apply a set of statutory factors to the facts of the case to determine if ordering grandparent visitation is within the child's best interests. It is so difficult to get a New Jersey court to award a grandparent with visitation rights because under the Fourteenth Amendment to the United States Constitution, a parent has a fundamental right to raise his or her child in almost any manner that they wish. Therefore, in order to protect this strong Constitutional right, a court will only award grandparents with similar rights if doing so would be to avoid significant harm to the child. If you are interested in seeking grandparent's visitation rights it is strongly advised that you seek out the advice of an experienced attorney. For more information about grandparent's rights, custody & visitation, or other family law matters in New Jersey visit HeatherDarlingLawyer.com and NJCivilUnionLaw.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.