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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