Grandparent Visitation: A Right No More?

In a recent New Jersey Appellate Division decision, entitled Wilde v. Wilde, the viability of the grandparent visitation statute (GVS) was dealt a serious blow. Tracy and Russell Wilde were married in 1992. They had two children: Russell, Jr., and Hayden, ages 8 and 6, respectively. In 1999, Russell, Sr., a lieutenant with the Cranford Police Department, committed suicide with a handgun in the presence of his wife. Plaintiffs in the Wilde case were Harry and Joan Wilde: the paternal grandfather and paternal step-grandmother. Harry Wilde was the Chief of Police for the Crandford Police Department.

Relations between plaintiffs and defendant Tracy Wilde had been strained for years. The children did visit with the plaintiffs on occasion before the suicide, though not regularly. After the suicide, defendant did permit the children to visit with the plaintiffs on several occasions, but not as often as plaintiffs had requested.

The plaintiffs, believing that they were entitled to the right to visitation with their grandchildren, retained an attorney. Plaintiffs’ attorney drafted a letter to defendant demanding a visitation scheduling and indicating that a court proceeding would be initiated, if defendant rejected plaintiffs’ request for a visitation schedule. Defendant refused and retained counsel. Plaintiffs filed suit in Superior Court, seeking a schedule of visitation. The suite was filed within five months of Russell, Sr.’s, suicide.

The trial court rejected plaintiffs’ request for a visitation schedule on several occasion but did order the parties to cooperate with a “therapeutic evaluator,” a psychologist that the trial court appointed. The trial court also ordered both parties to share the costs of the evaluator.

Defendant’s attorney filed challenges to the GVS, claiming that the statute was unconstitutional. The trial court rejected defendant’s attack on the statute, but the Appellate Court reversed.

In large part, the Appellate Division relied upon the recent United States Supreme Court decision in Troxel v. Granville, 530 U.S. 57. In Troxel, the Supreme Court struck down a Washington State statute that permitted any person to petition for visitation of a minor child. I discussed the Troxel decision in a previous article for the Courier.

Many commentators have opined that the Troxel decision would have limited effect on other State’s statutes. The Washington statute being overly broad – granting the right to petition for visitation rights to any person. Most State statutes grant the right to petition for visitation to a circumscribed group of close relatives – for example, New Jersey’s statute grants the right to siblings and grandparents, only.

But the Wilde Court’s view of the GVS casts serious doubt on the viability of future suits under the statute. Recognizing that a domestic relations proceeds in and of itself can constitute a state intervention in the parent-child relationship that is so significant as to implicate the constitutional rights of the parent, the Wilde Court placed restrictions on a grandparent’s right to initiate an action for visitation under the statute. Restrictions that while not enumerated in the statute, the Court read into the statute in order to carry out – what the Court perceived to be – the true legislative intent.

The Court held that deference must be given to a parent’s objections to the grandparents’ visitation request. Moreover, it is only when the grandparents have had a relationship with their grandchild that they could make a threshold showing of the right to visitation. Without such a prior relationship, no right to visitation exists.

The Court indicated that a prohibition on grandparent visitation suits when the parent is fit – as was the uncontested fact in Wilde – would have considerable merit. Accordingly, the Court held that grandparents must make substantial efforts at repairing their relationship with the parent before instituting suit and suit should only be initiated when visitation has been denied with finality. If the grandparents do earn the right to start a suit, the Court held that they must do so with restraint, meaning that they must refrain from denouncing, demeaning, or impugning the parent’s character.

If a suit against a fit parent is barred; if the grandparent must make substantial efforts at repairing the broken relationship with the parent before initiating the suit; and if the grandparent must exercise restraint in the litigation – a complete anomaly for most any family law suit – what rights do grandparents have to visitation after the Wilde decision? I think the answer is, a very limited right. Grandparents would be forced to claim that the parent is unfit but would have to do so while exercising restraint. Not an easy task.