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The NJ Appellate Court issued an unpublished decision in the matter of L.A.B. v. B.L.P. and C.J.B. affirming and reminding both litigants and practitioners of the standard utilized by courts when asked to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.