Children of divorce are sometimes caught in the thorny legal thicket of “grandparent visitation.” No one wants to deny a child the benefits of having a good relationship with their grandparents. However, the situation is made more complicated by the right of a parent to raise their child or children as he or she sees fit, and one of those rights may include which may include limiting or prohibiting grandparent visitation.
New Jersey courts approach such cases with strong deference to the parent—in layman’s terms, this means that there is no level playing field between parents and grandparents from the courts’ perspectives. In fact, in order to succeed over an objection of a child’s custodial parent, a grandparent must prove by a preponderance of the evidence that the grandchild or grandchildren would suffer particularized harm in the absence of such visitation. Thus, grandparents must first make “a clear and specific allegation of concrete harm… significant enough to justify State intervention in the parent-child relationship” whereas “mere general and conclusory allegations of harm are insufficient.”
This heightened legal requirement is intended “to avoid imposing an unnecessary and unconstitutional burden on fit parents who are exercising their judgment concerning the raising of their children;” see Moriarty v. Brandt, which was decided by the N.J Supreme Court in 2003, and Daniels v. Daniels, an Appellate Division decision in 2005.
In the recently-decided case of Loser v. Witt, the Appellate Division was again called upon as the result of an appeal by Mr. and Mrs. Loser from the trial court’s dismissal of their complaint for grandparent visitation. Although Mr. and Ms. Witt were no longer a couple, they were united in opposing the Loser’s request.
While the trial Judge concluded that the Losers had “good bond” with the children, they “failed to meet the required threshold showing of particularized harm to subject the parents and children to further litigation.” Accordingly, the Judge deferred to the Witts’ “joint decision that is was in the best interests of their children to stop visitation.” It was from this determination that Mr. and Mrs. Loser appealed.
In affirming the trial court’s decision, the appellate panel cited Moriarty and Daniels above and concluded that the Loser’s Complaint failed to “allege any unusual circumstances that would likely give rise to particular harm from denial of visitation,” and that since the parents were fit, they had the constitutional right to successfully oppose grandparent visitation in the circumstances.
Whether you agree or disagree with the above rulings, New Jersey law is clear that grandparents who seek visitation over the objection of fit parents will continue to have a high wall to climb. This is not to suggest that the legal burden cannot be overcome, but to recognize that grandparents must be able to show the likelihood of “particularized harm” to a grandchild in order to proceed and in some cases prevail.
If you or someone you know is involved in a grandparent visitation dispute, it is recommended that you consult with experienced legal counsel to assist in the matter.