Grandparent Visitation

As we have blogged before, in light of the Constitutional protections given to parents, grandparent visitation is very hard to obtain because the grandparents have to show harm to a child to meet their burden.  What happens, however, if parties agree to grandparent visitation and the parent then either changes their mind or reconsiders decides that the grandparents shouldn’t have visitation anymore?  Must the grandparents then have to prove harm, as if there never was a consent order in the first place because there was no proof that the visitation was necessary to avoid harm to the child.  That is exactly what a trial court, in the case of Slawinski v. Nicholas held.  Note that that basis for the motion to terminate the visitation was a claim that the child was upset by the visits, was not properly cared for during the visits and further, that the grandparent allowed the child’s father to be present at a visit even though his visitation had been suspended by a prior court order.  However, in a reported (precedential) opinion, released on December 6, 2016, the Appellate Division reversed and held that a parent could not unilaterally modify a consent order for grandparent visitation.

46606060 - grandparents having great fun with their grandchild

The parent’s attorney argued that she  should not have the burden to demonstrate grounds to terminate visitation inasmuch as the original Consent Order was entered by consent without any judicial findings that the visitation was beneficial. The attorney further contended, “[T]here is no burden that my client has to do anything other than say this is not working out, I tried.” The trial judge agreed and held that since the order was entered by consent, defendant was entitled to terminate visitation unless plaintiff could demonstrate, by a preponderance of the evidence, “that denial of visitation would result in harm to the child.”

In the decision, the Appellate Division provided a concise primer on the state of grandparent visitation, as follows:

We recognize that a parent’s fundamental right to raise a child as he or she sees fit encompasses the authority to determine visitation by third parties, including grandparents. See Moriarty v. Bradt, 177 N.J. 84, 114-15 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). Yet, that autonomy gives way to the need to protect the child from harm. Id. at 115. Thus, “grandparents seeking visitation . . . must prove by a preponderance of the evidence that denial of the visitation they seek would result in harm to the child.” Id. at 88. “If the court agrees that the potential for harm has been shown, the presumption in favor of parental decision making will be deemed overcome.” Id. at 117.

Still, proof of harm involves a greater showing than simply the best interests of the child. Id. at 116 (stating that a dispute between a “fit custodial parent and the child’s grandparent is not a contest between equals[,]” consequently “the best interest standard, which is the tiebreaker between fit parents, is inapplicable”). Substantively, it is a “heavy burden.” Major v. Maguire, 224 N.J. 1, 18 (2016); cf. Fawzy v. Fawzy, 199 N.J. 456, 479 (2009) (“The threat of harm is a significantly higher burden than a best-interests analysis.”). The harm to the grandchild must be “a particular identifiable harm, specific to the child.” Mizrahi v. Cannon, 375 N.J. Super. 221, 234 (App. Div. 2005). It “generally rests on the existence of an unusually close relationship between the grandparent and the child, or on traumatic circumstances such as a parent’s death.” Daniels v. Daniels, 381 N.J. Super. 286, 294 (App. Div. 2005). By contrast, missed opportunities for creating “happy memories” do not suffice. Mizrahi, supra, 375 N.J. Super. at 234. Only after the grandparent vaults the proof-of-harm threshold will the court apply a best-interests analysis to resolve disputes over visitation details. Moriarty, supra, 177 N.J. at 117.

The Appellate Division then discussed the impact of a consent order on the above law, and held:

But nothing about a parent’s right to autonomy warrants allowing a parent to unilaterally modify or terminate a consent order on grandparent visitation. The parent effectively waives that autonomy by entering into the order, just as a parent waives rights when entering into any other consent order governing custody or visitation. Given our respect for the consensual resolution of family-related disputes and the stability such agreements achieve, modification of a consent order governing grandparent visitation must be considered according to the same Lepis changed circumstances framework applicable to other custody and visitation orders.

The Appellate Division then provided the necessary procedure to follow should a parent wish to modify a Consent Order for Grandparent visitation, as follows:

Consistent with this approach, the court should apply the standard governing grandparent visitation if the movant-parent also succeeds in establishing changed circumstances. That is to say, the court must consider whether or not the modification of a grandparent’s visitation will cause harm to the child, as distinct from considering the best interests of the child.3 If the modification will not cause harm, the court must grant the modification even if the grandparent could show doing so was contrary to the child’s best interests.

When the parent is the movant, the parent bears the burden to establish grounds for modification. See Beck v. Beck, 86 N.J. 480, 496 n.8 (1981) (“[W]hen seeking joint custody after an initial custody determination has been made, even a parent enjoying such a relationship must satisfy the same burden of proof as applies to anyone seeking to change a custody decree, namely, a change of circumstances warranting modification.”); Abouzahr, supra, 361 N.J. Super. at 152 (assigning burden to show change of circumstances and child’s best interests to “party seeking a modification”); Sheehan, supra, 51 N.J. Super. at 287 (stating “the party seeking a modification bears the burden of proof”).

Thus, in a grandparent visitation case, the parent seeking modification bears the burden to prove changed circumstances and that the child would not suffer a particular, identifiable, child-specific harm, see Mizrahi, supra, 375 N.J. Super. at 234, if modification were ordered. Given that a grandparent’s burden to prove harm is more onerous than satisfying a best interests test, the parent’s burden to prove the absence of harm is less onerous than the best interests test. See Moriarty, supra, 177 N.J. at 113 (noting that a best interests test can be satisfied although the child suffers no harm) (citing Watkins v. Nelson, 163 N.J. 235, 248 (2000)); cf. Morgan v. Morgan, 205 N.J. 50, 63-65 (2011) (noting that a custodial parent’s burden to prove good faith and lack of harm in order to remove the child is less onerous than a showing of best interests). Once the parent establishes changed circumstances and the absence of harm, the court must grant the parent’s requested modification.

The Appellate Division was clearly wrestling with the long standing public policy favoring the settlement of disputes as juxtaposed against a parent’s constitutional rights as it relates to their children.  That said, one wonders whether a parent would be willing to give up their autonomy, especially in questionable circumstances, if they have will have to expend a lot of time and money to terminate the grandparent visitation in the future.


Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or

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After the US Supreme Court decided Troxel v. Granville in 2000, invalidating Washington’s “breathtakingly broad” grandparent and third party visitation statute, there was an onslaught of litigation, nationwide, seeking to invalidate grandparent visitation statutes in each state.  Ultimately, in 2003 in the case of Moriarty v. Bradt (a case I was involved with), the New Jersey Supreme Court addressed this issue for the first time, post-Troxel, and held that because a judicial order compelling grandparent visitation infringes on parents’ fundamental right to raise their children as they see fit, the statute could only survive a constitutional challenge if a “threshold harm standard” augmented the “best interests of the child” factors set forth in the statute. What followed was litigation about what constituted harm, how it could be plead, etc.


Thereafter, changes in court procedure began to create an obstacle to these cases meeting the initial threshold.  Because grandparent visitation cases are often treated as “non-dissolution” or “FD” cases, a streamlined, form pleading process was created by the court to use in FD cases.  The typical complaint which would lay out the facts was now not permitted.  Once it was determined that those attorney prepared pleadings could then be affixed to the form, the next issue that then arose was whether there was an entitlement to an expert and other discovery, since FD cases are deemed summary proceedings where discovery is not automatic.  While the Appellate Division seemed to resolve this in 2014 in R.K. v. D.L. which provided for a differentiated case management for complex FD cases, the Supreme Court had not yet weighed in on the topic.

Today, the Supreme Court has finally resolved this issue in grandparent visitation cases in the case of Major v. Maguire reaffirming the need for differentiated case management for complex grandparent visitation cases.  In this case, similar to the Moriarty case, one of the parents died and the remaining parent cut off the other grandparent’s access to the children leading to the litigation.  The trial court initially dismissed the Complaint because the grandparents could not prove harm.  The Appellate Division disagreed and reversed and remanded the matter to trial court with directions to re-examine the complaint under R.K..

The Supreme Court affirmed the Appellate Division, holding:

 We reaffirm the holding of Moriarty that, in order to overcome the presumption of parental autonomy in the raising of children, grandparents who bring visitation actions under N.J.S.A. 9:2-7.1 must prove by a preponderance of the evidence that denial of visitation will harm the child. This case, however, arises not from a court’s findings on a full record, but the grant of a motion to dismiss under Rule 4:6-2(e) at the pleading stage, in which plaintiffs must be afforded every reasonable inference of fact. Here, plaintiffs alleged in detail their involvement in their granddaughter’s life prior to the death of their son and contended on that basis that their alienation from the child caused her harm. The trial court should have denied defendant’s motion to dismiss and given plaintiffs the opportunity to satisfy their burden to prove harm.

Though the decision is 36 pages long, the following paragraphs encapsulate what you really need to know:

First, as applied to a complex grandparent visitation case, the Appellate Division’s case management recommendations in R.K., …, enhance the constitutional standard articulated in Moriarty. We concur with the panel in R.K. that in some grandparent visitation actions, the limitations imposed in summary actions may deprive a litigant of an opportunity to meet his or her burden under the statute and case law. … We recognize, however, that the case management procedures envisioned by R.K. also impose burdens on the privacy and resources of a family, and that they are neither necessary nor appropriate in every case.

We consider the approach reflected in Rule 5:5-7(c) to strike the appropriate balance. That Rule requires the trial court to hold initial and final case management conferences, and to enter an order addressing the full list of issues set forth in R.K., only in grandparent visitation cases that warrant assignment to the complex track. … Visitation applications that are not “complex” may be handled as summary actions, with or without case management and discovery as authorized by Rule 5:4-4(a). … Thus, when a trial court determines the need for complex case management in a particular case, the Appellate Division’s case management recommendations in R.K. provide a practical template for courts and parties.

Second, when a party seeks to have the matter designated as “complex,” the plaintiff should ordinarily file a non-conforming complaint, as permitted by Rule 5:4-2(i), to supplement the form pleading required by Directive 08-11. With no constraints on the length of their pleadings, many plaintiffs will be in a position to present a prima facie showing of harm in that complaint without the need for intrusive discovery. For example, in a case such as this one, the grandparent would be able to plead a showing of harm; he or she may allege his or her contacts with and care for a grandchild when the parent was alive, the timing and circumstances of the parent’s death, any changes in family relationships that followed, the nature of the claimed harm, and other pertinent considerations. … Relevant facts within a grandparent’s knowledge should be presented with precision and detail. Similarly, a parent opposing visitation should use his or her responsive pleading to identify issues on which the parties agree and counter the grandparents’ factual allegations on disputed issues…. Informed by the pleadings, the trial court can make a considered judgment about the complexity of the matter, the need for fact or expert discovery, and the issues to be resolved.

Third, in the event that fact discovery is required, the court and the parties should work together to coordinate and streamline the process. … Whether the case is designated as complex or handled as a summary action, Family Part judges have broad discretion to permit, deny, or limit discovery in accordance with the circumstances of the individual case. …Under the court’s supervision, the parties should address only the issues in dispute: whether the grandparents have met their burden to demonstrate harm to the child in the absence of visitation, and, if so, what visitation schedule will serve the best interests of the child, applying the factors identified in N.J.S.A. 9:2-7.1. …

Any discovery should be carefully circumscribed to prevent or minimize intrusion on the privacy of the child and his or her family. … It is the rare case that will require the trial court to embark on a comprehensive inquiry into family history or probe the relationships of warring adults. The court, counsel and parties should be aware that no matter how difficult the circumstances may be, the litigants’ interests are not the primary concern. Instead, the court’s focus, and that of the parties, must be the welfare of the child.

Fourth, as the Court noted in Moriarty, supra, expert testimony may be necessary for grandparents to meet their burden under N.J.S.A. 9:2-7.1. … Particularly in settings in which one of the child’s parents is deceased, and the other parent has barred or sharply limited the grandparents from contact with the child, parties seeking visitation may not have access to current information about the child’s status. In determining whether expert testimony is appropriate, trial courts should be sensitive to the impact of expert involvement on family resources, protective of the privacy of the child, and mindful of an expert’s potential value to the court and parties in suggesting a resolution of the dispute.

Fifth, even when it has afforded grandparents the opportunity to conduct fact or expert discovery, the trial court should not hesitate to dismiss an action without conducting a full trial if the grandparents cannot sustain their burden to make the required showing of harm. To that end, a court may dismiss summary actions pursuant to Rule 4:67-5, and decide complex visitation cases by summary judgment under Rule 4:46-2(c). Consistent with the due process autonomy interests recognized in Troxel, and Moriarty, a trial court should not prolong litigation that is clearly meritless.  (Emphasis added); (internal citations omitted and otherwise edited for space).

The takeaway is that, after a dozen years, there now seems to be more of a clear roadmap for the courts and litigants as to how to handle these cases if they are to be litigated.  That said, the Court interestingly noted that litigation may not be the answer, when it held:

Finally, trial courts should encourage parties to mediate or arbitrate grandparent visitation actions in accordance with New Jersey’s strong policy in favor of alternative dispute resolution. In a meritorious case, a seasoned mediator or arbitrator with experience in visitation and custody issues may devise a solution for the parties’ conflict promptly and inexpensively, to the benefit of the child and the parties.

Query, should or will a parent be forced to mediate a non-meritorious case because a trial court seeks to punt the above procedures down the road? If so, would that, in an of itself violate the constitutional protections that Moriarty and Major seek to impose.  The future of grandparent visitation cases will remain interesting, I’m sure.


Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or

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In the Matter of MJM v. MM, an interesting new decision released earlier last week from the New York Supreme Court in Suffolk County, the trial judge held that a paternal grandmother petitioning for visitation with her grandchildren lacked standing to seek such relief.  The situation involved severe allegations of violence by the children’s father against the mother, as well as grandma’s relationship with her son.

Grandma specifically alleged that such relief was appropriate because: (1) the children’s mother had refused to allow her to see the children for almost a year, (2) she always had a strong relationship with the children, (3) she previously had “liberal visitation” and was actively involved with them since birth, (5) the children’s father (petitioner’s son) had not seen the children for almost a year due to a no contact order of protection, and, (6) generally, such relief was in the children’s best interests.


Mom for the children opposed the petition, alleging: (1) she was stabbed four times by the children’s father in the presence of the children; (2) a no contact order of protection was issued almost a year earlier in the related child protective proceeding prohibiting dad from having any contact with the children; and (3) there were pending criminal, matrimonial and personal injury proceedings.

Mom also alleged that grandma had no current relationship with the children, “because the situation fail[ed] to rise to the level of circumstances in which equity would see fit to intervene,” and, generally, the visitation was not in the children’s best interests because: (1) grandma lived with the children’s father, (2) paid for dad’s counsel fees for his criminal, matrimonial, personal injury, and child welfare proceedings; (3) had joint financial accounts with dad; (4) vacationed with dad; (5) was a potential witness in three of his cases and a potential impleaded party in the personal injury case; and (6) had a “virtually symbiotic relationship” with dad who had “committed a horrific assault” on mom in the children’s presence.

Grandma responded that she would have tried to keep in contact with the children but for the order of protection, and provided additional details regarding her relationship with and connection to the children.  She largely did not deny mom’s allegations about living with her son and paying for his counsel fees for several legal matters.  Grandma also indicated that she was open to alternative forms of visitation outside of the home and would respect the order of protection.  Further reply was filed by mom arguing against grandma’s petition, but not disputing grandma’s description of her relationship with the children prior to implementation of the no contact order.

As a threshold matter, the court held that it could not determine whether visitation with grandma was in the children’s best interests unless it first found that grandma had standing to bring her petition before the court.  Ultimately, the court concluded that grandma lacked standing to bring her visitation petition because she failed to demonstrate that “circumstances show conditions in which equity would see fit to intervene”.

In so holding, the court quoted from Section 72 of the New York Domestic Relations Law, which provides grandparents with standing to file for visitation with grandchildren, “[w]here either or both of the parents of a minor child, residing within [the] state, is or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene . . .”

Since both parents were alive in the subject case, the issue of standing rested on the existence “of conditions in which equity would see fit to intervene,” which is not automatic and is based on an examination of all relevant facts at issue.  After reciting the above-referenced allegations, the court took note of the following in finding there did not exist standing for grandma to bring her petition:

  • grandma having waited 11 months to take any legal steps to see the children – especially since she is not referenced in the no contact order against dad.  Her argument that she failed to take steps to see the children because of said order was, thus, discredited, and it was her failure to try to see the children why she had no current relationship with them when she filed her application.  Quoting a previously decided matter, the court provided, “[if] the grandparents have done nothing to foster a relationship or demonstrate their attachment to the grandchild, despite opportunities to do so, then they will be unable to establish that conditions exist where “equity would see fit to intervene”.
  • grandma’s close relationship with her son

The specific facts of the case merited a dismissal of grandma’s application under DRL Sec. 72, but the result may have very well been different had she made sufficient and timely efforts to contact her children, and kept some degree of distance/independence from the children’s father in light of what he had done.


*Photo courtesy of google free images.

Too often, I see people trying to make their co-parent’s life difficult just for the sake of being difficult.  Want to take your child to the carnival?  No – it interferes with dad’s parenting time by 30 seconds.  Want to enroll your child in karate?  Sorry – mom has plans to watch paint dry with your child during her time instead.  Now that summer has arrived, the difficulties you’ve experienced all year tend to culminate in the ultimate co-parenting dispute: Vacation Time.


Several days ago, I blogged about what parents need to know before they travel abroad alone with their child in a blog post entitled “Single Parent Traveling Internationally This Summer? Read This First.”  The blog discusses the State Department forms that are necessary for obtaining a passport and for traveling outside of the United States.  Of course, many of these forms require either the consent of the other parent, or, in the alternative, for the other parent to somehow be absent from the child’s life thereby waiving the consent requirement.

But what happens when a parent is present, involved and affirmatively withholds consent for international travel without any reasonable basis?

In a June 17, 2015 (unreported) decision, Judge Jones of Ocean County, New Jersey Superior Court answers that question.  And in great detail…

The case involved 2 ex-spouses arguing about whether their child may or may not travel to Holland and the Netherlands this summer with his mother in order to visit his maternal grandparents.

The problem was, however, that the mother unilaterally decided that she wanted to have the child stay in Holland for approximately 9 weeks, thereby depriving the father of any and all summer parenting time.  The kicker was that the mother was only going to stay in Holland for 2 out of the 9 weeks.  The father, understandably, objected.

As the Court succinctly summarized the implications of the mother’s position: “[mother]…basically seeks court permission to leave the child with the grandparents for two months over [father’s] objection, without any apparent regard for the impact such an extended stay will have on [father’s] own father/son plans this summer.”

On the flip side, the father, the Court said, drew and “unreasonable line in the summer sand” by taking the position that the child should not visit Holland at all during the summer.  He postulated that the mother presented a flight risk even though she had no history of being a “parental kidnapper”.  He further argued that if the child’s grandparents wished to see him, they should fly to New Jersey.

Waxing poetic about the value of family summer vacations, the Court found that it is “an extremely important, special and time-honored part of family life [which provides] highly unique and valuable opportunities for a child to bond with parents and other family members, while creating highly positive and lasting memories.”  For divorced parents, the Court said, vacation time should be encouraged as consistent with the “best interests of the child.”

Ironically, however, the judge noted that oftentimes parents spend time and energy warring over summer vacation plans “that are supported to be an escape from such stress and tension in the first place.”  Moreover, these parents sometimes spend all of the money earmarked for summer vacation fighting in family court about summer vacation plans.

Finding both parents’ positions wholly unreasonable, the Court found that a trip to Holland of a shorter and more reasonable length – up to 2 weeks – would be permitted.

Next, the Court tackled the issue of the child procuring a passport in order to be able to travel, which to that date, the father refused to authorize via the signing of a DS-3053 form.  This form and other requirements of travel is more fully described in my prior post.

While the Court poignantly stated that it could not “forcibly put a pen in plaintiff’s hand and force him to sign the child’s federal passport application forms” it did have power to watch over the child’s best interests and therefore granted the mother the power of attorney to apply for the passport without the father’s consent.  She was further directed to fill out the “statement of special circumstances” and to attach a certified copy of the Court’s Order.

While the Court noted that the state court could not compel the federal government to issue a passport, it hoped that it would find the “special circumstances” posed by this case “relevant and persuasive” for the Department of State to consider in determining whether to issue a passport, even without the father’s consent.

The Court’s conclusion actually put a smile on my face (which is rare when reading child custody decisions, I can assure you):

The court wishes the child a safe, happy and exciting journey on his 2015 summer vacation trip to the Netherlands, and thereafter a safe return back home to New Jersey.

So, if you are ever having issues with parental consent to summer vacation, be sure to have Judge Jones’ decision on hand.  It provides witty commentary on this age-old problem and provides some really good insight into the importance of sharing these time-honored traditions with both parents.


head_BaerElianaEliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or

Custody disputes are often an emotionally trying process where litigants are advocating for what they deem to be in the best interests of the child caught in the middle.  Even with the opinion of a custodial expert and months, if not years of litigation, the decision is a difficult one for a trial judge to make.


A custody dispute between two fit parents requires a court to determine the issue of custody based on the best interests of the child.  When the dispute is between a fit parent and a third party, however, only the “fit parent is presumed to be entitled to custody,” because the rebuttable presumption is that the child’s welfare will be protected.

A third party can overcome the presumption, however, by satisfying the standard required for termination of the rights of a non-consenting parent – unfitness, abandonment, gross misconduct or so-called “exceptional circumstances.”  This is a 2-step process:

  1. Application of the parental termination standard or a finding of “exceptional circumstances.”  Exceptional circumstances may be satisfied by establishing that the third party has become the child’s psychological parent.
  2. If the parental termination standard or “exceptional circumstances” component is fulfilled, the court must decide whether to award custody to the third party in the best interests of the child.

As part of Step 1, to determine if there exists a “parent-like” relationship between a third party and a child, the following 4 prongs must also be fulfilled:

  1. The biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child.
  2. The petitioner and the child lived together in the same household.
  3. The petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation [a petitioner’s contribution to a child’s support need not be monetary].
  4. The petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

Only after this test is fulfilled under the “exceptional circumstances” option can the best interests standard be applied under Step 2.

In J.F. v. R.M., an unpublished (not precedential) Appellate Division decision, the biological father, was denied residential custody of the child in favor of the child’s great-grandmother despite him being deemed a fit parent.  Without getting into too much detail about the facts, the child lived with his maternal great-grandmother after his birth in 2007.  Dad was not involved in his life until 2011, claiming that he did not know the child was his son.  The mother lived with great-grandmother on and off for three and a half years before departing for good.

In early 2011, great-grandmother filed an action seeking custody of the child, which was granted.  She also sought to establish dad’s paternity and his obligation to pay child support.  Dad was granted “open and liberal” parenting time, and he exercised time regularly with the child, including overnights.

In later 2013, dad filed an application for full custody of the child.  Great-grandmother opposed the application, arguing that there was no basis for a change.  After a hearing, the trial judge denied dad’s application and recognizing that, because there was no allegation of parental unfitness or gross misconduct by dad, the law required great-grandmother to demonstrate the existence of “exceptional circumstances” – such as “psychological-parent” status to retain residential custody of the child as a non-parent.

After concluding that she was the child’s psychological-parent based on her bond with the child, and that the child used her as a parental figure even though he knew she was not his mother, the court then applied the “best interests of the child” standard in denying dad’s application.  In so holding, the trial court noted that because great-grandmother was deemed a psychological-parent to the child, she was held on equal footing with dad as a parental figure and, as a result, the best interests standard applied.  Ultimately, the court found no basis to change the custodial arrangement, despite noting that dad was doing “a great job as a father,” because there was no dispute that the child was doing great.

Dad appealed, arguing that great-grandmother was not a psychological-parent and, as a result, the trial court should have applied the “parental fitness” test, rather than the best interests standard.  The Appellate Division disagreed.  Primarily, he argued that he did not consent or foster the child’s relationship with great-grandmother under Step 1 of the psychological-parent test detailed above because he did not know for certain that he was the father.  The Appellate Division, however, noted dad’s concession to knowing mom was pregnant, he never sought to determine paternity until great-grandmother sought child support, and then 2 more years passed before he sought residential custody.  As a result, his actions/inactions were deemed “tacit consent” to great-grandmother’s relationship under the first part of the 4-part test.

Interestingly, the Appellate Division also found the fourth part of the 4-part test fulfilled as to the length of the child’s relationship with great-grandmother because parts two and three were fulfilled with the child living with her throughout his entire life and her being the primary caretaker.

As a result, the Appellate Division affirmed the trial court’s finding that great-grandmother was the psychological-parent and use of the best interests standard in denying dad’s application.  Custody disputes are very fact sensitive situations.  The facts and circumstances here were certainly of no exception in denying a fit biological father’s request for residential custody of the child.


*photo by supakitmod courtesy of

An interesting part of the practice of family law are the rare issues; the one that may not walk through the door every day.  Grandparent visitation cases oftentimes fit into this category.  They nearly always prove interesting, regardless of whether you represent the grandparent(s) or the parent(s), and they can quickly become complex and difficult (both emotionally and legally).

The NJ Appellate Court issued an unpublished decision in the matter of L.A.B. v. B.L.P. and C.J.B. affirming and reminding both litigants and practitioners of the standard utilized by courts when asked to make a determination of whether or not a grandparent has a legal right to visitation with a grandchild if the parents so oppose the request.  Unlike contested custody matters between two parents where the standard the court must use is “best interest of the child”, our Supreme Court has determined that in the cases of grandparent visitation, it is the grandparent who must prove, by a preponderance of the evidence, that not having visitation with him/her/them would cause harm to the health or welfare of the child.  Not having the visitation would cause significant harm to the child, which the court must prevent as is its job as parens patraie.

The statute that governs grandparent visitation is known as the Grandparents and Siblings Visitation Statute N.J.S.A. 9:2-7.1.  It requires that grandparents who seek visitation plead and show the potential for particularized harm to the child resulting from the lack of grandparent visitation.  The spirit of the statute was further clarified in the precedential NJ Supreme Court decision of Moriarty v. Bradt, 177 NJ 84 (2003).  Simply pointing out the flaws of the child’s biological parent(s) is not enough.   The harm to the child must be directly caused by the lack of grandparent visitation and can be remedied by having the grandparent visitation.  The harm must also be to the child and not to the grandparent.  The example illustrated in Moriarty, where the court found grandparent visitation appropriate, where the expert opined that visitation was needed “to protect the children from the harm that would befall them if they were alienated from their grandparents,….which would cause the children to believe essentially that half of them, that their mother’s half is evil, is damaged, is bad, and that this would cause self-esteem problems.”  This was a particularized, specific harm that would befall the children if the grandparents were not allowed visitation.  There was a special need for continued contact.  A close and loving relationship with a  grandchild is not enough. Neither is the loss of future memories.

Sandra C. Fava, Partner, Fox Rothschild LLPSandra C. Fava is a partner in the firm’s Family Law Practice, resident in its Morristown, NJ office. You can reach Sandra at 973.994.7564 or

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We don’t typically post about DYFS (now DCPP) or similar type cases on this blog as we usually focus on divorce and related issues. That said, for fun, I was reading the new cases that were decided yesterday and came upon a case that I found compelling, both because it indicated some systemic problems in custody cases and because it had some real strong language about parental rights – that while stating the obvious, perhaps, did so in a powerful way and in a way that needed to be reiterated. 

The case I’m talking about is  C.D., A.P. and D.D. v. N.D.M.  and A.L.   which was an unreported (non-precedential) decision released by the Appellate Division on January 8, 2013.  In that case, the aunt and grandparents received temporary custody of her niece and a best interest evaluation, to be completed within 90 days, was ordered.  The parties ultimately agreed to a joint expert to do the evaluation,  That evaluation, which by court order was to be completed in 90 days, took more than a year to complete.

SYSTEMIC ISSUE #1:  All custody and best interest evaluations are supposed to take 90 days or so.  That almost never happens.  Rather, it is not unusual for it to take 6 months or longer to get a report.  If it is a joint or court appointed expert, the party who doesn’t like the report has the right to get their own report so add another several months to the process.  As in this case, where the mother’s custody with her own child hinged upon this report, the prejudice cannot be quantified.

Continue Reading Getting Temporary Custody of a Relative Does Not Make You the Psychological Parent

For more than a decade, we have known that biological parents have certain constitutional protections that help them defend against grandparents or other third parties seeking visitation with their children.  In fact, in New Jersey, because a fit parent has a fundamental constitutional right to autonomy in child-rearing decisions, a grandparent who seeks a visitation order must show that visitation is necessary
to avoid harm to the child.

Some times, however, someone other than the biological parents have custody of children.  Often these people assume the role of "psychological parent."  A psychological parent is essentially a person whom a child considers to be his or her parent, even though that individual may not be biologically related to the child. Does a psychological parent have the same constitutional protections as a biological parent when dealing with a request by a grandparent for visitation?  Yesterday, in the case of Tortorice v. Vanartsdalen, a reported (precedential) decision released by the Appellate Division, the answer to that question was no.

In this case, the litigation involved the maternal grandparent, who had custody and claimed to be the psychological grandparent and the paternal grandparents who sought greater visitation.  In this case, the maternal grandmother argued for the premise there is parity created between legal parent and psychological parent which provides the psychological parent with the constitutional protections
enjoyed by a legal parent as to third parties.  In so arguing, she was relying on a case involving the lesbian partner of a biological parent who was given parity.  The Court distinguished the relationship be finding that the partner was invited to the realm of family privacy such that that parent’s right to autonomy is reduced by their own act.  This was not the case here, though interestingly, the court found that the psychological parent would now be in parity with the natural parents of the child (typically, because of constitutional considerations, natural parents have protections as to other parties as it relates to custody of children.)  In this case, the harm standard is not appropriate but rather, the best interest of the child standard must be used.



Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or



Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or

As reported in the online version of the New Jersey Law Journal, in a story by David Gialanella,, state Senator Loretta Weinberg of Bergen County introduced  legislation that would lower the burden of proof for grandparents and siblings seeking visitation.

In the year 2000, grandparent visitation became much more difficult to obtain as a result of the United States Supreme Court case of Troxel v. Granville which held that Washington’s "breathtakingly broad" grandparent visitation statute to be unconstitutional.  At issue was the constituonal right to parental autonomy vs. grandparents vistitation.  That case set off a wave a litigation nation wide attacking state’s grandparent visitation statutes.  New Jersey was not immune to this and in 2003, the New Jersey Supreme Court decided the case of Moriarty v. Bradt (a case in which I drafted the Petition for Certification.)  In Moriarty, the court held that grandparents may be awarded visitation over parental objections if a "potential for harm" standard can be shown by a preponderance of the evidence.  SInce that case, it has been much more difficult for grandparents to get visitation because it is very difficult to show harm, and just alleging generic harm was not enough.  We have blogged about this in the past.  In the cases I have had since that time, in order to successfully obtain grandparent visitation, you almost had to show that the grandparent took on a parental role for some period of time and/or was a constant presence in the child(rens) lives. 

Continue Reading Is the Standard in NJ to Get Grandparent Visitation Going to Get Easier?

Oftentimes in typical family life, circumstances unfold between grandparents and their children that result in a "cutting of ties," so to speak, where contact ceases not only with the children, but with grandchildren as well.  By that time, grandparents have commonly formed loving ties and bonds with the grandchildren that are at a risk of breaking due to the conflict with the parents.  What are a grandparents’ rights to have visitation with the grandchildren in such a situation?  The answer can be found in New Jersey’s Grandparent Visitation Statute, N.J.S.A. 9:2-7.1, which imposes a difficult burden upon the grandparents to establish a right to visitation because the grandparent is essentially seeking to intrude upon the overwhelming strength of a parent’s fundamental, constitutional right to raise their children.   

Continue Reading Grandparents Face a Steep Burden in Seeking Visitation