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New Jersey Lawyer
October 9, 2000
Grandparent
visitation: NJ law
infringes on parental right
[Reprinted with the permission of New Jersey Lawyer,
copyright 2000]
By Joel R. Brandes
In Troxel v. Granville, 137 Wash. 2d, 969, the U.S.
Supreme Court held that the grandparent visitation order issued by a
Washington State lower court was an unconstitutional infringement on the
mother’s fundamental right to make decisions concerning the care, custody
and control of her two daughters and that the Washington statute, as applied
in this case, was unconstitutional.
The Supreme Court rested its decision on "the sweeping
breadth" of the Washington statute and the application of its
"broad, unlimited power," cautioning it did not consider the primary
constitutional question decided by the Washington Supreme Court: Does the due
process clause require all non-parental visitation statutes to include a
showing of harm or potential harm to the child as a condition precedent to
granting visitation?
In many ways, the Washington visitation statute is similar
to the law for grandparents and siblings in New Jersey. And the statute in the
Garden State does not — as we argue it should — require a showing of harm
to the child before state intervention.
In Troxel, Jenifer and Gary Troxel petitioned a
Washington Superior Court for the right to visit their grandchildren, Isabelle
and Natalie Troxel. Tommie Granville, the children’s mother, objected.
She and Brad Troxel never married, but shared a
relationship that produced two daughters. Jenifer and Gary Troxel were Brad’s
parents. After Tommie and Brad separated in 1991, Brad lived with his parents
and regularly brought his daughters to their home for weekend visitation. The
grandparents continued to see the two girls regularly after their son
committed suicide in May 1993. However, in October 1993, Granville informed
them she wished to limit them to one short visit per month.
In December 1993, the Troxels commenced an action in
Washington Superior Court to obtain visitation rights. They cited Wash. Rev.
Code §26.10.160(3) (1994), which says, "Any person may petition the
court for visitation rights at any time including, but not limited to, custody
proceedings. The court may order visitation rights for any person when
visitation may serve the best interest of the child whether or not there has
been any change of circumstances."
The Troxels requested two weekends of overnight visitation
per month and two weeks of visitation each summer. Granville did not oppose
visitation, but wanted it limited to one day per month with no overnight stay.
In 1995, the Superior Court ordered one weekend per month, one week during the
summer and four hours on both of the grandparents’ birthdays.
Granville appealed. During that period she married Kelly
Wynn, who formally adopted the two girls while the case still was in the
appeals process.
The Washington Court of Appeals reversed the Superior Court’s
visitation order, holding nonparents lack standing to seek visitation unless a
custody action is pending.
The Washington Supreme Court affirmed, saying the U.S.
Constitution permits a state to interfere with the right of parents to rear
their children only to prevent harm or potential harm to a child. And it noted
the visitation statute failed that standard because it required no threshold
showing of harm.
The court there held that "[p]arents have a right to
limit visitation of their children with third persons" and that between
parents and judges, "the parents should be the ones to choose whether to
expose their children to certain people or ideas."
The U.S. Supreme Court in a 4-3 opinion written by Justice
Sandra Day O’Connor also said the statute violated the federal constitution.
O’Connor, citing the 14th Amendment, said the interest of
parents in the care, custody and control of their children "is perhaps
the oldest of the fundamental liberty interests recognized by this
court." She further noted there is "extensive precedent"
supporting this interpretation of the due process clause as it applies to the
rights of parents.
The court characterized the Washington statute as
"breathtakingly broad," saying it does not give any validity to a
parent’s decision regarding visitation. The Supreme Court found the problem
in Troxel was not that the Washington Superior Court intervened, but
when it did so, it gave no special weight to the mother’s determination of
her daughters’ best interests. There were no special factors to justify the
state’s interference with Granville’s fundamental right to make decisions
concerning the rearing of her daughters. The grandparents did not allege nor
did the court find Granville an unfit mother. The court said this aspect of
the case is important since there is a presumption that fit parents act in
their children’s best interests.
O’Connor concluded that "so long as a parent
adequately cares for his or her children (i.e., is fit), there will normally
be no reason for the state to inject itself into the private realm of the
family to further question the ability of that parent to make the best
decisions concerning the rearing of that parent’s children."
As the court explained, the due process clause does not
permit a state to infringe on the fundamental right of parents to make
child-rearing decisions simply because a state judge believes a
"better" decision could be made. Neither the Washington nonparental
visitation statute, which placed no limits on either those who may petition
for visitation or the circumstances in which such a petition may be granted,
nor the Superior Court there, which initially granted visitation, required
anything more.
Statute here
Here in New Jersey, N.J.S.A. Section 9:2-7.1, which
provides grandparents an independent right to seek visitation with their
grandchildren, may be criticized for many of the reasons the Washington
statutory scheme was declared unconstitutional.
This statute provides:
" a. A grandparent or any sibling of a child residing
in this State may make application before the Superior Court, in accordance
with the Rules of Court, for an order for visitation. It shall be the burden
of the applicant to prove by a preponderance of the evidence that the granting
of visitation is in the best interests of the child.
b. In making a determination on an application filed
pursuant to this section, the Court shall consider the following factors:
(1) The relationship between the child and applicant;
(2) The relationship between each of the child’s parents
or the person with whom the child is residing and the applicant;
(3) The time which has elapsed since the child last had
contact with the applicant;
(4) The effect that such visitation will have on the
relationship between the child and the child’s parents or the person with
whom the child is residing;
(5) If the parents are divorced or separated, the time
sharing arrangement which exists between the parents with regard to the child;
(6) The good faith of the applicant in filing the
application;
(7) Any history of physical, emotional or sexual abuse or
neglect by the applicant;
(8) Any other factor relevant to the best interests of the
child.
c. With regard to any application made pursuant to this
section, it shall be prima facie evidence that visitation is in the
child’s best interests if the applicant had, in the past, been a full-time
caretaker for the child."
The New Jersey grandparent visitation statute was sustained
as constitutional by the Superior Court in R.T. v. J.E., 277 N.J.
Super. 595. In that case, the married parents of three children ages 12, 8 and
2 moved to dismiss the maternal grandparent’s petition for visitation,
claiming the statute, as it applies to intact families, is unconstitutional.
In denying their motion, the court held the statute, which allows all
grandparents to petition for visitation rights even if the parents are not
divorced, deceased or separated, but which does not make visitation automatic,
does not violate rights of parents to raise and care for their children as
they see fit. The court noted the statute is predicated upon the presumed
beneficial relationship existing between grandparents and grandchildren.
However, it does not automatically conclude that all such relationships are
beneficial. The court placed the burden of proof on the grandparents to
convince the court by a preponderance of the evidence that such visitation is
in the best interests of the child. The court further noted the statute was
not arbitrary or capricious in that it clearly employs fundamentally fair
procedures and can be said to equally balance the interest of all parties
involved.
Although the New Jersey statute is not as broad as
Washington’s, it gives all grandparents the right to apply for visitation
with their grandchildren and to meet the burden of establishing that
visitation is in the child’s best interest by a preponderance of the
evidence. The statute seeks to balance the competing interests of
grandparents, grandchildren and parents.
Although it considers the best interests of the child and
enumerates eight specific factors that the court must weigh in making its
determination, the statute is overly broad; the parents’ decision is not a
factor to be considered by the court in determining such visitation is in the
child’s best interests.
Burden shifts
Like Troxel, the language contained in the statute
here effectively grants standing to any grandparent seeking visitation, to
subject any decision by a parent concerning visitation to court review.
Moreover, once a visitation petition has been filed by a grandparent who was
full-time caretaker for a child, the grandparent has made out a prima facie
case by virtue of the presumption that visitation is in the child’s best
interest. Thus, in such a case, the burden of establishing that visitation is
not in the child’s best interest shifts to the parents.
A parent’s decision that visitation would not be in the
child’s best interest is accorded no statutory deference. N.J.S.A. 9:2-7.1
contains no requirement that a court accord the parent’s decision any
presumption of validity or any weight, let alone "material weight."
Instead, it places the best-interest determination solely in the hands of the
judge and gives certain grandparents a preference. Should the judge disagree
with the parent’s estimation of the child’s best interests, the judge’s
view necessarily prevails.
In practical effect, a court in New Jersey can disregard
and overturn any decision by a fit custodial parent concerning visitation
whenever a grandparent affected by the decision files a visitation petition,
based solely on the judge’s determination of the child’s best interests.
The statute here is not founded on any special factors that
might justify the state’s interference with a parents’ fundamental right
to make decisions concerning the rearing of their children. It does not
require a showing of unfitness, which the U.S. Supreme Court in Troxel
pointed out is important because there is a presumption that fit parents act
in the best interests of their children. Moreover, the New Jersey statute
gives no special weight to fit parents’ determination of their child’s
best interests and, like Troxel, fails to provide any protection for a
parents’ fundamental constitutional right to make decisions concerning the
rearing of their children.
Significantly, in custody proceedings brought by
grandparents or third parties, the "best interest" analysis is not
reached unless there is a finding of harm to the child, in which case parents
forfeit their custody rights by surrender, abandonment, persistent neglect,
unfitness or other extraordinary circumstances. It logically follows that
there is no compelling reason for the state to enact a visitation statute that
interferes with the rights of the natural parents and reaches a best interest
analysis in grandparent or sibling visitation proceedings without a similar
finding. See Stanley v. Illinois, 405 U.S. 645.
When the natural parents are alive, married or divorced,
does the state have a compelling state interest sufficient to allow it to
determine, in the best interest of the child, the extent to which the child’s
contacts with its natural family should be interfered with? We think not,
absent a showing of harm to the child.
The constitutional principles of due process and privacy
protection prohibit state interference with the custody of the child, over
parental objection, unless and until there is a showing of harm to the child
without that intervention. We believe a grandparent visitation statute that
applies the best interest analysis and does not require a showing of harm to
the child before state interference is authorized is unconstitutional.
While we believe it is in the best interests of most
children to have a loving relationship with their grandparents and frequent
visitation with them, it appears the New Jersey statute is an unconstitutional
infringement on parents’ fundamental right to make decisions concerning the
care, custody and control of their children.
... Joel Brandes is a
fellow of the American Academy of Matrimonial Lawyers and the International
Academy of Matrimonial Lawyers.
