Grandparent Custody and Visitation Rights

Grandparent Custody Rights
Grandparent Custody Rights

We often field calls from grandparents who have been denied access to their grandchildren, and who feel that they are unfairly being left out of their grandchildren’s lives.  This sadly arises commonly when the grandparent’s own child, the mother or father of the child has died, and for various reasons the remaining parent has chosen not to permit continued contact with the grandchildren. In some situations, both parents are alive and well and have had a falling out with one or both sets of grandparents where once there was a relationship. This can no doubt be difficult for the grandparents, especially those also grieving the loss of their own child. Where the mother and father are divorced and the grandparent’s child dies, the legal bond creating the “family” as such is not even present, and there is oftentimes acrimony between grandparents and their former in-law arising out of the divorce.

What about the rights of grandparents to see their grandchildren? What about the right of fit parents to raise their children as they deem appropriate?  The right of a grandparent to petition for visitation is codified under N.J.S.A. 9:2-7.1. The statute sets forth eight factors for courts to consider in assessing applications for grandparents to have access to the grandchildren. The procedure by which courts are to apply the above statute was detailed in the seminal case of Moriarty v. Bradt, 177 N.J. 84 (2003). In that case, our Supreme Court noted that, though parental autonomy is a fundamental right deeply embedded in the American culture, in certain instances, pursuant to the state’s parens patriae power, that right can, and will, be encroached upon. Id. at 101, 114-115. The polestar, however, is harm to the child or children should visitation be denied. It is not, as many often confuse it, alleged harm to the grandparent at having been denied access to the grandchildren. This is a critical distinction fundamental to any application for grandparent visitation.

In Moriarty, the court took special note of the trial court’s findings relating to the relationship of the grandparents with the children. The court highlighted specifically the fact that the relationship between the grandparents and the children was extensive and significant. Moreover, the maintenance of this relationship was found to be critically important given the mother’s recent death. Contact with the grandparents was found to provide a link to the children’s mother and that branch of their family. Id. at 119. Significant as well was the attention by the court to expert testimony from a psychologist who found that the visitation plan proffered would effectively allow alienation of the mother’s family by the father. The therapist went on to point out that, given the father’s overt hostility toward the grandparents, successful alienation of the children would result in psychological harm to them. Id. at 121-122.

Moriarty made clear the fact that any successful application for grandparent visitation rests on the ability to articulate specific harms to the children. Moreover, these harms need to be able to be proven through the evidence presented at the hearing. Subsequent cases have reinforced and further delineated just what kind of showing must be made, as the ability to articulate an identifiable harm to the child is paramount to justify interference with a parent’s fundamental due process rights.  See Rente v. Rente, 390 N.J. Super. 487 (App. Div. 2007); Mizrahi v. Canon, 375 N.J. Super. 221, 234 (App. Div. 2005) (noting that, “Conclusory, generic items … are not a sufficient basis to warrant such an intrusion into a parent’s decision making.”).

In practical terms, a grandparent who has been the caretaker of a child or who has stood in locus parenti at some point prior to being denied visitation with the child is in the best position to establish the kind of bond that, if removed, could cause harm to that child. Unfortunately, most grandparents do not fit this mold. And while there is no doubt that they love and care for their grandchildren, these less involved relationships are not generally of a quality satisfying the burden to trump a parent’s presumptive right to raise their children as they see fit, including to whom the children have access.

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Dueling Grandparents?

When the biological parents are unfit to parent their child, it can place a tremendous burden and accompanying stress on the replacement custodians; often one of the sets of grandparents.  The burden may have just increased with a recently published case (meaning that new law has been created). 

Essentially, the stresses of having to step in for unfit parents isn’t limited to the “custodial” grandparents against the biological parents, but can often extend to the non-custodial grandparents; the grandparents who did not receive a Court order awarding them custody of the child.  Both sets of grandparents love their grandchild.  However, they may have different views on many custodial issues such as: who should the child be living with, who should share time with the child, how should the child be raised, etc. 

Generally, one of the sets of grandparents will be initially awarded temporary physical custody of the child.  If the custodial grandparents elect to shut the other grandparents out of the child’s life, what can that second set of grandparents do? 

Under the newly clarified law, the Court has made it clear that a grandparent with custody does not have the same level of autonomy as the actual parents of a child would have.  Grandparents with custody cannot force the other grandparents to satisfy with the Court a difficult burden of proof before visitation will be shared.  All that the non-custodial grandparents must show is that it is in the child’s best interests to have a relationship with BOTH grandparents.  This is not a difficult burden.

In my opinion, this clarification of custodial rights will have important ramifications moving forward, including possibly expanding the visitation rights of other close relatives such as aunts and uncles.

Adoptive Parents and Sibling Visitation Rights

In a recent unanimous New Jersey Supreme Court decision, In the Matter of D.C. and D.C., it was established that adoptive parents cannot ignore blood bonds between siblings and may be ordered to permit sibling visitation where it is necessary to avoid harm to the child. This case concerned twin girls who were placed in a foster home at three months. The twins’ older brother, then 13, was placed with an adult sister in Virginia, Nellie, who wanted to adopt him. Nellie wanted to adopt the twins as well, but in the interim won visitation rights.

In August 2007, Virginia’s child welfare agency recommended placing the twins with their sister, but revoked the recommendation in December 2007 largely due to her financial problems at the time and the poor academic progress of the 13-year-old brother. In the same month, the court terminated the natural mother’s parental rights to all three of the children. In January 2008, the N.J. Division of Youth and Family Services (DYFS) denied Nellie’s application to be a kinship guardian of the twins and terminated her visitation rights with them. Nellie sued in April 2008, seeking placement of the twins in her care, or in the alternative, the right to regularly visit them. DYFS took the position that it controls a child’s life after termination of parental rights and that control is not subject to judicial review.

In June 2008, Hudson County Superior Court ordered continued visitation between Nellie, her 13-year-old brother and the twins. However, the next month, the twins’ foster mother said she would not facilitate such visitation. In New Jersey, the standard for determining custody arrangements is the “best interests” of the child. Nellie then sought to enforce the June 2008 order, but the Court ruled that, in light of the termination of their natural mother’s parental rights, the best interests of the twins trumped the siblings’ rights to visitation. The Appellate Division agreed with the decision that Nellie be denied visitation. The New Jersey Supreme Court, however, focused on the question of sibling visitation rights before and after adoption, thereby clarifying the rights of children in placement from this point forward.
Before adoption, the Child Placement Bill of Rights Act gives children in out-of-home placements the right to visit with the child’s sibling on a regular basis and to otherwise maintain contact if the children are placed separately. This means that before adoption, the right to sibling visitation is presumed and DYFS has an obligation to facilitate it. If DYFS opposes visitation, it must prove that such contact is against the child’s best interests. After adoption, a different standard applies. Sibling visitation is then governed by the Grandparent and Sibling Visitation Statute under the same rules that apply to biological families. Accordingly, adoptive parents may be ordered to permit sibling visitation if the party seeking the visitation can prove that the child would be harmed if denied sibling contact.
The New Jersey Supreme Court has clarified the rights of children in placement to have contact with their siblings following the termination of parental rights. As a result, sibling visitation rights may be enforced even after adoption.