GRANDPARENT VISITATION REVISITED

For the July 12, 2001, edition of the Courier, I wrote a column entitled Grandparent Visitation: A Right No More? My column detailed a recent decision of the Appellate Division of the Superior Court of New Jersey, Wilde v. Wilde; the Wilde decision severely limited the statutory right of a grandparent to petition a court for a visitation schedule with his grandchild.

The Wilde decision came on the heels of a United States Supreme Court decision, Troxel v. Granville, that struck down a Washington State statute allowing any individual (grandparent or not) to petition a court for visitation with a child. The Supreme Court held that the Washington State statute was overly-broad, being an impermissible infringement on a parent’s constitutional rights.

The Wilde court held that a grandparent must prove that a parent is unfit before he will be granted a visitation schedule with his grandchild, in those instances where the parent refuses to grant visitation to the grandparent. This, needless to say, was a very difficult burden for a grandparent to meet and effectively killed a grandparent’s right to establish a visitation schedule with his grandchild, when the parent does not voluntarily accede to visitation.

On July 21, 2003, the Supreme Court of New Jersey significantly lightened the burden of a grandparent in this situation. In a decision entitled Moriarty v. Bradt, our Supreme Court held that a grandparent who is denied visitation with his grandchild must prove by a preponderance of the evidence that a denial of visitation threatens harm to the child.

The “harm” standard appears to be rather easily proven. The “preponderance of the evidence” standard is the lowest evidentiary standard. There are three, primary evidentiary standards: preponderance of the evidence, clear-and-convincing, and beyond a reasonable doubt.

We’ve all heard of “beyond a reasonable doubt” from watching television. That is the standard used in criminal matters. It is a very difficult burden of proof to meet. Remember, O.J. Simpson was found not guilty.

The clear-and-convincing standard is less than the beyond a reasonable doubt standard but a higher standard than the preponderance of the evidence standard. The “beyond a reasonable doubt” standard means that the person who bears this burden must prove that it is more likely than not that the fact he seeks to prove is true. For example, with grandparent visitation, the grandparent would have to prove that it is more likely that harm will result to the grandchild if visitation is denied than not.

The “harm” that must be proven can be psychological or physical, and the Supreme Court has indicated that harm can arise in many and varied circumstances. According to the Court, harm can be proven either through the facts of the case or through expert testimony.

I’m not a litigator, and I don’t practice family law, but it seems to me that this “harm” standard is relatively easy to meet. For example, a grandparent could put forth evidence of his strong and consistent relationship with the grandchild and infer that the breaking of that relationship could cause psychological harm to the child.

Once the grandparent has proven “harm by a preponderance of the evidence,” the parent must offer a schedule of visitation. If the grandparents are satisfied with the visitation schedule that the parent offers, the inquiry is over; if not, then the court must establish a visitation schedule that is in the child’s “best interests.”

Our Supreme Court has revived a grandparent’s right to petition our courts for visitation. This decision gives life to our grandparent visitation statute and hope for many grandparents who would otherwise be deprived of their grandchildren’s company.