As a family law attorney, my firm often fields calls from grandparents who have been denied access to their grandchildren, and who feel that they are unfairly being left out of their grandchildren’s lives. This sadly and most commonly arises when the grandparent’s own child has died and, for various reasons, the remaining parent has chosen not to permit continued contact with the grandchildren. In other situations, both parents are alive and, for one reason or other, they have had a falling out with one or both sets of grandparents. This can no doubt be difficult for the grandparents, especially those also grieving the loss of their own child. Where the mother and father are divorced and one of them dies, the legal bond creating the “family” as such is not even present, and there is oftentimes acrimony between grandparents and their former in-law arising out of the divorce.
When there has been a denial of visitation, the question to the attorney from these grandparents is “what rights do I have to see my grandchildren?” Historically under the common law, grandparents, siblings or other third-parties have had no legal right to seek visitation with grandchildren, other siblings, or children of unrelated persons. Concordant with this, parental autonomy- that is, the ability to make decisions for one’s child without judgment – has been recognized as a fundamental and deeply embedded right in our culture.
Over time, however, most states have adopted some form of statutory law that grants a defined class the right to seek visitation over and above the wishes of a fit parent. In this regard, the law has created a tension in dueling sets of rights - between the culturally embedded right of parents to make decisions for their children and the statutorily created rights of grandparents or others to intervene in children’s lives, against the possible preference of a parent. While on one hand I doubt anyone would challenge a parent’s right to parent their child as they see fit; on the other, the majority of individuals are likely just as uncomfortable with the idea that a spouse, ex-spouse or partner would restrict access to a child’s extended family in their absence.
Reflecting the hesitancy with which the law has been willing to subvert the primacy of parental decision-making, and yet address the very real problem of critical access to grandchildren, brothers and/or sisters, the laws enacted by the states have always been circumscribed by threshold requirements limiting the ability to gain standing. By way of example, in New York prior to 1975, the state statute required proof that one or both of the grandchild’s parents be deceased before an application for visitation could be considered on the merits. In some states still, a grandparent must show that the parent, or parents, have refused all visitation before an application will be considered. This begs the question of parents in these jurisdictions who offer visitation of, say, once a year for twenty minutes. In this light, is such a requirement a fair threshold to protect parental autonomy from improper intrusion or an unfair standard that allows parents to subvert the statute with bad faith such that in practice the threshold will almost never be met?
All of this highlights the question that sits at the heart of these kinds of issues: What is the proper balance between these conflicting rights? To be sure, there are proponents on both sides, with some wanting higher thresholds to protect parental rights, and some wanting lower thresholds to ensure that grandparents are not unfairly kept from a relationship with their grandchildren by spiteful parents. In recognition of this discussion, and in response to a decision by the U.S. Supreme Court, Troxel v. Granville, 30 U.S. 57 (2000), state laws have adapted over time, either through amendments to the statute or by case law. For example, New York amended its statute in 1975 to apply to intact families, meaning those families where both parents were still alive, and then again in 2003 to allow an application for visitation where “extraordinary circumstances” would warrant it.
In New Jersey, the right of grandparents to seek visitation is codified under N.J.S.A. 9:2-7.1. Under the statute, a grandparent or sibling may apply for visitation and the burden then falls on the applicant to prove by a preponderance of the evidence that such visitation is in the best interest of the child. This is determined by applying eight factors set forth in the statute to the particular case at hand.
Despite the language of the statute, New Jersey’s courts have been clear that the polestar in the analysis is not best interest, but, rather, harm to the child should visitation be denied. Also the courts have noted that critical to any application is the ability to identify and articulate specific harms to the child that can be proven through the evidence presented. In this regard, such cases are highly fact sensitive and much weight is often placed on the expert testimony of forensic psychologists. By way of example, in the seminal case Moriarty v. Bradt, 177 N.J. 84 (2003), of particular importance were findings that the relationship between the grandparents and the children was extensive and significant. The maintenance of this relationship was found to be vitally important given the mother’s recent death. The court paid particular attention to expert testimony from a psychologist who found that the visitation plan proffered by the remaining parent would effectively allow alienation of the mother’s family, which in turn would result in psychological harm to the children. In this way, one can see how, in New Jersey at least, it has been case law that has driven the balancing of rights.
But whether case law or statutory amendments are shaping the balance of rights, this ignores the reality that litigation in this area is fraught with the risk of causing additional damage to families, both mental and emotional, no matter which side one takes. There is a true loss of privacy, as this litigation clearly opens families up to inspection by the court, as well as mental health professionals, and subjects their every move to evaluation and interpretation. There is also a loss of the peace and tranquility that may have been enjoyed by and between family members in many instances, as the demands of litigation impact upon the parties and children. In this regard too, the heightened tension between two sets of family members, and that children may feel torn between them, is undeniably stressful and unhealthy. Finally, the financial burden of litigation may be crippling to both sides, as counsel and expert fees will undoubtedly be involved, and many families lack the resources for such costs.
In light of the limited angles available to grandparents to argue for visitation, one commentator has noted that the best way to have a relationship with one’s grandchildren is to first have a good relationship with one’s children. There is wisdom and truth in this observation. For, even with a statutory right to visitation, the road through the court process is difficult, emotional and stressful. And as the courts in New Jersey have made clear, grandparents still have a high threshold burden to overcome to infringe upon the presumptive decision-making authority of a fit parent. Therefore, the relationship with one’s child, and their spouse, may in fact mean the difference in whether a relationship with grandchildren continues. In the end, at least where there are responsive parents on the other side, proactively managing those relationships may result in more success, financial savings, and, more importantly, less stress on the children, than letting a court decide the balance of the legal rights at play.
Tadd J. Yearing is an attorney at Pashman Stein, P.C. in Hackensack, New Jersey, where his practice is devoted to divorce and family law related matters. He is a contributor to the family law blog www.njfamilylaw4u.com. He can be reached at email@example.com or by telephone at 201-488-8200.