Posted on December 30, 2009 by Robert A. Epstein

GOLDMAN SAGA CONTINUES

One would have hoped that Sean Goldman's return to the United States with father David Goldman would have been the end of this years-long international saga.  Sadly, however, that may not be the case.  News reports yesterday indicated that 9-year old Sean's Brazilian family will fight to regain "custody" of Sean, which is interesting since the family's actions and that of the boy's now deceased ex-wife really constituted an international abduction, thus leading to the boy's ultimate Court-Ordered return. 

After the family previously indicated that the fight was over, lawyers for the family will push to have the Brazilian court hear the boy's wishes after all - indicating as much on the same day that the boy returned home to Tinton Falls, New Jersey, claiming that it was "our home" when seeing the house where he will live once again.  Since the Supreme Court in Brazil does not convene until February, it would not be able to hear the family's arguments before then.

How the Brazilian family's ongoing legal actions will impact their likely future claim for visitation is unclear, as even their decision to publicly parade Sean through the streets in Brazil on the way to the United States consulate on Christmas Eve has been roundly criticized and, according to David Goldman, was a traumatic experience for Sean.  The family, however, has substantial financial resources and will likely fight this losing battle, seemingly at the wishes of Sean's maternal grandmother, until there is no avenue untapped.  For an additional prior blog post on this topic regarding Sean's return, click here as well.  Stay tuned for further details.

EDITOR'S NOTE:  We have previously blogged on grandparent visitation on several occasions.  Grandparent visitation is difficult to obtain in New Jersey following the US Supreme Court's decision in Troxel v. Granville and the New Jersey Supreme Court's decision in Moriarty v. Bradt and the cases that followed it.  Given the constitutional protections of the rights of a parent to parent their child(ren) free from interference from third parties, grandparents now must prove actual harm to the child if they do not receive visitation.  While on one hand, the death of a parent (as was the case in Moriarty) would be a factor in the grandmother's visitation request here on one hand, the abduction and the history in this case may mitigate that factor.  Moreover, one wonders whether, despite the harm that may be able to be proved in this case, given the circumstances surrounding the child's alleged bond with the grandmother and step father, that visiitation with these people who were allegedly part of the ordeal that kept father and son apart for several years, would overcome the harm.  ERIC S. SOLOTOFF

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Posted on October 8, 2009 by Sandra C. Fava

RIGHTS OF GRANDPARENTS TO VISITATION

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).

In order to overcome the presumption favoring a fit parent, a grandparent must show by a preponderance of the evidence that there exists "exceptional circumstances" which warrant interference.  The analysis is not one of merely best interests of the child as is used in parent to parent custody or parenting time disputes.

Recently, the Appellate Division addressed the issue in the unreported decision of Goolsarran v. Rushefsky, A-1084-08T3, Decided September 29, 2009.

In this matter, husband and wife had one child born of their marriage.  Husband had a strained relationship with wife's family and for a few years after their marriage, wife had minimal contact with her family as a result of this strained relationship.  Husband had no relationship with wife's family.  After the birth of their first and only child, wife was diagnosed with a cancerous brain tumor that ultimately led to her death some three years later.

Wife's mother came to see the child in the hospital after her birth.  When wife became ill, her mother cared for the baby and her daughter while husband worked.  At some point during this time, tensions between husband and wife escalated to the point where they separated and husband moved out of the home.  He and wife established a visitation scheduled where each had equal time with the child.  When the child was with wife, her mother assumed the responsibility for the child's care when she was unable.  When wife's condition worsened, she and the child moved into her mother's home.

On the day of wife's death, husband and his parents picked up the child from wife's parents' home.  A subsequent disagreement occurred over visitation scheduling with wife's family.  From that time, husband did not want wife's family to see the child and litigation ensued.

The trial court found that wife's mother was the child's primary caregiver during wife's parenting time after the parties separated, for a period of approximately 2 years.  Based on that role, the judge concluded that severing ties with the child's grandmother or other members of the wife's family and their traditions would leave a void in the child's life.

Husband appealed the trial court's decision arguing that the trial court misapplied the law as the judge focused his analysis on the best interests of the child without first deciding that the child would be harmed by husband's decision to deny visitation.

The Appellate Decision upheld the lower court's finding.  Citing heavily to the tenets of Moriarty, the Court held that wife's mother had become a psychological parent to the child.  There was an unusually close relationship between grandmother and granddaughter based upon wife's mother's primary caretaking role in the face of wife's deteriorating health and impending death.

It is critical when determining if a claim for grandparent visitation is viable to carefully scrutinize the relationship between the grandparents and the child.  Each case is factualy different  and those specific facts must be carefully presented to the court.  More often that not, the decision in grandparent visitation suits turn on a specific fact, that is, the nature of the relationship between the grandparents and children.  Moriarty made clear that the granparents must show harm to chidren.  Vague allegations of harm are not enough.
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Posted on September 11, 2009 by Robert A. Epstein

DOMESTIC VIOLENCE THROUGH THE INTERNET

We have previously blogged about domestic violence in the digital age, discussing how various forms of electronic surveillance can be deemed an act of domestic violence in New Jersey.  As also previously blogged on, so-called "cyberstalkers" may potentially face stiffer penalties for their conduct under two proposed bills in the New Jersey Assembly.  These types of remedies and protection are becoming more and more necessary as people are utilizing new technologies to abuse their victims.

In S.B. v. Duffy, a new unreported (not precedential) decision from the Appellate Division, it affirmed a trial court's finding that a former boyfriend had committed an act of domestic violence by emailing the plaintiff and threatening her that if she did not answer his email within three days, he would, among other things, put nude photos of her on a website.  The plaintiff testified that after a first court adjournment, she continued to receive emails from the boyfriend and that the boyfriend was posting things about her on his website.  She also testified that the boyfriend had changed his password and that she could not access the website to see what he was posting. 

Despite the boyfriend's testimony that the plaintiff had full access to his website, that it was her who was disrupting the site, and that he did not write the emails to her, the trial court entered a final restraining order in part because of the photographs in existence, which were taken in a private setting during the relationship.  The court actually disregarded the emails because there was no proof as to who wrote them without expert testimony.

As this case demonstrates, with rapid changes in technology courts are faced with new types of misconduct upon which determinations as to domestic violence are required. 

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Posted on November 7, 2008 by Eric S. Solotoff

IS THE STANDARD FOR SIBLING VISITATION THE SAME AS FOR GRANDPARENT VISITATION?

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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