NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Domestic Violence, Prenuptial Agreements, Child Custody

Previously, Eric Solotoff, Esq. of my office  blogged on the issue of grandparent visitation in comparison to sibling visitation.  To check out his post, click here.

Moriarty v. Bradt, 177 NJ 84 (2003) is this state's seminal decision on grandparent visitation as decided by our Supreme Court.  Our courts have held that there is a presumption favoring deference to a fit parent's choice about visitation which must be overcome before the court may enter an order requiring visitation with grandparents on the ground that it would be in the child's best interests.  Moriarty at 115, 117.  The US Supreme Court also addressed this issue in the matter of Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000).

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Last week, I authored and released a Family Law Alert regarding the new Guidelines for Child Custody Evaluations in Family Law Proceedings issued by the American Psychological Association Issues. To view a PDF version of the alert, click here.  The full text of the alert is as follows:

The American Psychological Association (APA) notes that parties resolve child custody issues amongst themselves in 90 percent of the cases. When parties cannot resolve custody and visitation issues (called “parenting time” in New Jersey) amongst themselves or after a court’s early intervention program, the next step is to have a child custody evaluation performed by a forensic psychologist. In some cases, the court will appoint this expert. In others, the parties may agree upon a joint expert. In bitterly contested cases, parties often have their own custody expert - and there may also be a court appointed expert.

In 1994, the APA developed Guidelines for Child Custody Evaluations in Divorce Proceedings. The APA issued updated guidelines effective February 21, 2009, which are effective for the next 10 years. These Guidelines consist of 14 individual guidelines that are meant to be aspirational in nature, and not mandatory. Rather, the Guidelines are intended to facilitate the continued systematic development of the profession and a high level of practice by psychologists. The Guidelines were not intended to be exhaustive nor replace the judgment of the psychologist. That said, they provide fodder for cross-examination during a custody trial if the expert is not aware of the Guidelines and/or fails to follow them. A rationale and application is provided for each of the following 14 Guidelines:

1.  The purpose of the evaluation is to assist in determining the psychological best interests of the child. Since the ultimate standard in deciding a custody case is “the best interests of the children,” the Guidelines reinforce that the psychologist should be focusing on the psychological best interests of the children, which is what the Court expects. The Guidelines encourage the expert to weigh and incorporate family dynamics and interactions; cultural and environmental variables; relevant challenges and aptitudes for all examined parties; and the child’s educational, physical and psychological needs.

Litigants going through the process of a custody evaluation should provide the expert with all relevant information regarding these factors. In reviewing the expert report, make sure that the expert has addressed them all. If it is your own expert, you may want to inquire why these issues are not included. If it is a neutral or adverse expert, it is a potential issue to be raised on cross examination. With the neutral expert, you may not want to wait until trial. If any of these factors are important enough to impact the final recommendation, you may want to ask the expert to reconsider his or her recommendation in light of this information.
 

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The issue of sibling visitation does not come up all that often.  However, it comes up often enough for there to be a statute that addresses it.  In fact, it is part of the same statute that provides for grandparent visitation.  The statute (N.J.S.A. 9:2-7.1) provides, in part,  that:  " 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 then provides a list of 8 factors for a court to consider.

Subsequent to the enactment of that statute, the US Supreme Court  in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), and the NJ Supreme Court in Moriarty v. Bradt, 177 N.J. 84 (2003), cert. denied, 540 U.S. 1177 (2004) issued opinions regarding third party visitation statutes in the context of grandparent visitation. In light of the decision is Troxel which struck down Washington's grandparent visitation statute,  the Court in Moriarty construed the NJ statute to require grandparents, when the parents refused visitation, to demonstrate by the preponderance of the evidence that such visitation was "necessary to avoid harm to the child."  I know a little bit about the Moriarty  case as I wrote the Petition for Certification in that matter.

The issue of sibling visitation was addressed in an unreported case released on November 6, 2008 entitled T.R. v. L.R. To see the full text of the case, click here.

This is a sad case which involved domestic violence, allegations of abuse and estrangement between parent and child.   In this case, an older sister filed an application to intervene in her parents' divorce case , seeking visitation with her younger sister.  In this case, the trial court applied the same standards as it would to a grandparent visitation case. The daughter appealed on the basis that the Troxel/Moriarty analysis applied only to grandparents and not to siblings because the nature of the relationship is different. 

The Appellate Division never decided that issue in affirming the trial court decision because it said that they were unable to conclude that the trial court abused its discretion when it denied the motion for visitation. 

The decision is interesting because the Court also noted other judicial authority which commented on importance of sibling relationships.  That said, given the facts of this case, the judge never had to reach that issue.

However, given the constitutional questions addressed in Troxel/Moriarty it appears likely that an analysis under those cases will necessarily be required in future sibling visitation cases. 

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