Grandparent Visitation

I have previously posted several blog entries about custody and parental rights where DYFS (“Division of Youth & Family Services”), NJ’s child protective agency, has involvement.  To read those posts click here, here, or here.

On September 29, 2010, the NJ Supreme Court issued an opinion addressing the standards to be applied to a sibling’s request for visitation after children are placed outside the natural family’s home and after they are adopted.  The opinion of In the Matter of D.C. and D.C., Minors provides guidelines for those siblings who seek to continue a relationship with their adopted and/or placed siblings and addresses a very important issue for families across this state.

The facts of D.C. can be summed up as follows: Nellie, the biological sister of Hugo and twins sought custody and visitation of her siblings after DYFS removed the children from her mother’s care and placed them in separate homes.  In 2005, Nellie, then age 23, resided in Va.  Hugo was 14 years old at the time.  In 2006, Hugo was placed with Nellie.  In 2007, DYFS discussed visitation of the twins with Hugo and Nellie.  In August 2007, Va.’s child placement agency (“RDSS”) approved placement of the twins with Nellie and Hugo but expressed concerns about Nellie’s ability to support the children.  Based on that concern, visitation was recommended to ease the transition.  Then, in late 2007, RDSS rescinded its recommendation for placement of the twins with Nellie and Hugo because of Hugo’s poor grades and Nellie’s job loss.

The biological mother’s parental rights were terminated in December 2007.  In January 2008, DYFS approved Nellie as kinship legal guardian of Hugo, but not the twins.  At the same time, Nellie was informed visitation with the twins would stop.  In April 2008, Nellie filed an action seeking placement of the twins in her care or alternatively reestablishing the sibling visitation.  DYFS opposed her application.


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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

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

The New Jersey Appellate Division recently handed down an interesting decision regarding termination of parental rights and kinship legal guardianship interpreting the Kinship Legal Guardianship Act in New Jersey. In the matter of Division of Youth and Family Services v. D.H. and J.V., was a case where the Law Guardian filed an interlocutory appeal from