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HOT TOPICS SEMINAR

By: Jeralyn L. Lawrence

In New Jersey, we recognize the rights of grandparents to petition the Court for visitation with their grandchildren. Our statute, N.J.S.A. 9:2-7.1(b) provides eight factors for a Court to consider when assessing a grandparent visitation application. (The statute is in the materials)

Our Courts have long recognized the role grandparents play in a child’s life, stating that, at best, they are generous sources of unconditional love and acceptance which complements rather than conflicts with the roles of the parents and that visits with grandparents are often a precious part of a child’s experience and there are benefits which devolve upon the grandchild from the relationship which he cannot derive from any other relationship. That philosophy has been long standing in New Jersey. (Mimkon)

About 18 months ago, the United States Supreme Court decided Troxel v. Granville which seemed to cause quite a stir amongst New Jersey practitioners relative to the Constitutionality of our statute.

Troxel dealt with an unmarried couple from Washington State who had two daughters. They separated. The father committed suicide two years later. Pending the separation and post their son’s death, the grandparents exercised constant and regular contact with their grandchildren. Five months after dad’s death, mom sought to limit visitation to one visit per month.

The Washington State statute provided:

Any person may petition the Court for visitation rights at any time including, but not limited to, custody proceedings. The Court may order visitation for any person when visitation may serve the best interest of the child.”

  • At the trial level, mom offered one day of visitation per month, with no overnight stay.
  • Trial court awarded one weekend per month and one week summer vacation and four hours on each grandparent’s birthday.
  • Appellate Division reversed
  • Washington Supreme Court granted grandparent’s petition for review. Washington Supreme Court held that no visitation rights to be awarded to grandparents because the statute unconstitutionally infringed on the fundamental right of a parent to rear their children.

AND HELD

1. A state can only be permitted to interfere with the right of a parent to rear their children only to prevent harm or potential harm to a child, and

2. Allowing any person to petition for visitation of a child at any time with the only analysis being the best interest of a child is too broad.

  • US Supreme Court granted certification and affirmed the Washington Supreme Court and held that the Washington State Statute violated the 14th Amendment.

Importantly, however, the US Supreme Court did not pass on the issue of whether all nonparental visitation statutes violate the Due Process Clause and specifically stated their decision rests on the sweeping breadth or the breathtakingly broad Washington State Statute.

In New Jersey, our courts have specifically recognized the specificity of our statute by its having eight factors. In fact, the eight factors were adopted in light of New Jersey practitioner’s concerns regarding a future constitutionality challenge to the statute.

Recently, however, the constitutionality of our statute was challenged in the case of Wilde v. Wilde. (Handout 341 N.J.S. 381) The facts of the Wilde case are: Tracy and Russell Wilde were married in 1992. They had two children, ages 8 and 6, when their father Russell, a Cranford Police Lieutenant, committed suicide with a gun at home in Tracy’s presence. Harry Wilde, Russell’s father and his second wife Joan, the children’s step grandmother, petitioned the Court for access to their grandchildren. Russell died September 18, 1999. Grandparents filed application on April 24, 2000. Prior to filing and post-father’s death, Tracy allowed contact on a number of occasions, but Tracy, post her Husband’s death, became increasingly distant to the grandparents.

At the trial level, Judge Brock held that Troxel did not apply as New Jersey’s statute was not breathtakingly broad. Mother appealed. The Appellate Division in an opinion authored by Judge Coburn, were called upon to rule on (A) was our grandparent visitation statute unconstitutional on its face and (b) unconstitutional to as applied to Tracy Wilde.

In sum, the Appellate Court declined the opportunity to resolve the facial validity of the grandparent visitation statute and ruled that the grandparents visitation statute as applied in the Wilde case was unconstitutional. The reason for said ruling was because the Court found that the grandparents lawsuit violated core principles necessary to protect a parent’s substantive due process rights.

The core principals violated, the Court stated, and the hot tip from the Wilde case and the minefield to avoid is:

Before engaging the Courts, grandparents should be obliged to make substantial efforts at repairing the breach in the relationship between themselves and the parent and litigation should not be threatened before visitation has been denied with finality. And if litigation becomes necessary because the parent has persistently resisted the grandparent’s respectful and patient overtures, it must be conducted with restraint. Grandparents must refrain from denouncing, demeaning, and impugning the parent’s character.

In the Wilde case, the court was troubled at how quickly (in their opinion) the suit was filed and the grandparent’s failure to attempt to improve relations with Tracy.

Further, the Court found the Wilde’s acted without restraint pending the litigation calling Tracy a liar, slanderer and spendthrift who had caused her husband to overwork — a particularly hurtful allegation considering the nature of Russell’s death.

As such, the Court held the grandparents visitation, as applied in this case, was unconstitutional.

Thus, in your grandparent visitation cases in addition to the eight factors outlined in the statute, pencil in the holding of Wilde and be sure to meet that prong and all its subparts as well.

Additionally, key points to be aware of when differentiating Troxel to your New Jersey case:

1. Troxel = broad/factorless statute vs. New Jersey = 8 factors (9+, really, with Wilde)

2. Troxel = Mom had BOP that grandparent visitation not in best interest of child
New Jersey, grandparents have burden of proof by Preponderance of the Evidence, that in children’s best interest to have visitation

3. Troxel = Mom decision given no deference

4. New Jersey – our factors (2,4,6,8) inherently consider that
Washington Statute allowed any person at any time to petition
New Jersey = limit to grandparents/siblings

Other Tips

  • Focus early on the parent’s position – are they looking to deny all access or limit access?
  • If limit – make sure you immediately establish a schedule and if want more time later, easier road than going from nowhere to some
  • Set the precedent now!
  • If seeking to deny all access – these cases are terribly difficult and heart breakers.
  • Try your hardest to get any access, immediately – take supervised if you have to
  • The longer you go with no access, the worse off you are
  • Hire an expert immediately, particularly where one spouse is deceased so the expert can meet with other family members/siblings and hopefully become a voice for them.

and add the “new factor” as outlined in Wilde to the 8 factors outlined in the statute.