Grandparent Visitation

Grandparent visitation is a unique area of family law that presents interesting case law every few years and seems to be growing with time and modern families.  We have blogged about this issue, including the requirement to show harm to the child if the grandparent doesn’t have visitation and procedure for grandparent visitation applications,

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

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

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

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

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The case I’m talking about is  C.D., A.P. and D.D. v. N.D.M.  and A.L.   which was an unreported (non-precedential) decision released by the Appellate Division on January 8, 2013.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.


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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

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. 


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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.   


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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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