The issue of grandparent visitation has been addressed most recently by the New Jersey Supreme Court in the case of Moriarty v. Bradt, 177 N.J. 84 (2003). In this case, the Court addressed the constitutional issues surrounding the application of New Jersey's Grandparent Visitation Statute, codified at N.J.S.A. 9:2-7.1, in light of the United States Supreme Court decision of Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d (2000). In Troxel, the United States Supreme Court struck down the State of Washington's Grandparent Visitation Statute on grounds that it was overbroad and infringed on fit parents' constitutional rights to rear their children. Recognizing Troxel, and believing that its holding was consistent with Troxel's mandate, the New Jersey Supreme Court added a threshold requirement of harm to the New Jersey statutory scheme. Grandparents must now establish by a preponderance of the evidence that grandparent visitation is necessary to avoid harm or potential harm to the child which would result from the denial of same by a fit parent.
It is the opinion of this author that the New Jersey Supreme Court has failed in this regard to establish a standard which properly protects a parent's fundamental constitutional right to provide for the care, custody and nurturance of his or her children, free from intrusion by the state except in extraordinary circumstances. The articulation of the “preponderance of the evidence” standard may well be an illusory protection, since it too easily allows a court to infringe upon constitutionally protected individual rights. Instead, the Court should require that the grandparents meet the heightened “clear and convincing evidence” standard, and clearly and convincingly prove that harm will befall the grandchildren should visitation not proceed as proposed by the grandparents. The Court's holding is based partially upon an artificial distinction between custody and visitation so as to justify the lessened standard, and opens the door to state interests that may fall short of “compelling” (as is required to justify the intrusion upon a fundamental constitutional right). The application of the “preponderance of the evidence” standard also encourages the Court to make decisions based upon “proof” which falls short of establishing specific harm to the children, since it is difficult, in circumstances where the grandparents and grandchildren have had a good prior relationship, to conceive of a situation where the grandparents would be unable to establish that valuable time with their grandchildren has been lost and that some harm would befall the children as a result. Especially in situations such as the one presented in Moriarty, where the mother has died and the maternal grandparents are petitioning for visitation, it is difficult to imagine that the grandparents would be unable to allege and ultimately prove by a preponderance of the evidence harm or potential harm to the children should visitation be limited. It is hereby submitted that the type of generalized harm which would likely be present in many cases, such as Ihe absence of a continued connection with the deceased parent's family, should not be sufficient to overcome the fundamental individual interests at stake.
Moreover, because the Court necessarily acts upon what really amounts to second-hand information, i.e. expert reports and the like, and can never really have access to all of the facts and information relevant to such a determination, a clear and convincing evidence standard would compensate for these inherent limitations. The Moriarty Court based its decision in large part upon the trial court testimony of Dr. Judith Brown Greif, D.S.W. Her testimony was in turn based upon her review of the Family Services Report and not upon personal interviews with the parties. Her testimony as to the harm that would befall the children if grandparent visitation were limited, consisted of an opinion that their self esteem would suffer from being alienated from their maternal grandparents because they would be convinced by their father that their mother was bad and would then believe that they were half bad because they were each one half of their mother. Parental judgment as an outgrowth of constitutionally protected rights should never be undermined by such textbook psychological jargon and generalized “proof.” Indeed, without the heightened standard of proof requiring a clear and convincing showing of harm to compensate for other inherent shortcomings, it may well be that the Grandparent Visitation Statute, with all of its attendant factors for the Court to consider, is unconstitutional as applied under these circumstances.
History of Grandparents Rights
Prior to the enactment of grandparent visitation statutes, grandparents had no legal right to petition for visitation. Historically, grandparent visitation was routinely denied because it was believed there was no such legal obligation; grandparent visitation was thought to hinder proper parental authority; placement of the child in the midst of conflict was not in the best interests of the child; it was believed that the parent alone should be the judge in accommodating grandparent visitation; and coercive means to establish family relations were frowned upon at that time. See Moriarty, 177 N.J. at 95-96, quoting Mimkon v. Ford, 66 N.J. 426, 431 (1975). The nuclear family rather than the extended family was the cornerstone of society. However, these views began to change as grandparents lived longer and there was an increase in the divorce rate which made the grandparents' role in providing nurturance, support and emotional security and stability for the children an important one. Grandparents were thought to give the children a basis for a “cultural and historical sense of self.” Id. at 96-97. Thus the general thinking changed to form a belief that grandparents played a significant role in the emotional well-being of their grandchildren.
New Jersey enacted its Grandparent Visitation Statute in 1972 against this backdrop. In its present form, which became effective in 1993, it provides as follows:
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 the visitation is in the best interest of the child.
b) In making a determination on an application filed pursuant to this section, the Court shall consider the following factors:
- the relationship between the child and the applicant;
- the relationship between each of the child's parents or the person with whom the child is residing and the applicant;
- the time which has elapsed since the child last had contact with the applicant;
- 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;
- if the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;
- the good faith of the applicant in filing the application;
- any history of physical, emotional or sexual abuse or neglect by the applicant; and
- any other factor relevant to the best interest of the child.
The legislative history of the New Jersey Grandparent Visitation Statute instructs us that the enumerated factors were included as a way of limiting the intrusion upon the sanctity and privacy of the family unit, so as to preserve a certain amount of deference to parental autotomy. See In re Adoption of a Child by W.P. and M.P., 163 N.J. 158, 165-166 (2000). However, as this article will prove, this has not been the case.
The Teachings of Troxel and Watkins
The case of Moriarty v. Bradt squarely presented to the New Jersey Supreme Court the issue of what level of scrutiny should be applied to the New Jersey Grandparent Visitation Statute, as well as the standard to be applied. Specifically, the New Jersey Supreme Court was required to define the precise scope of the parental due process right in the visitation context, as well as establish whether a showing of harm or potential harm to a child would be required as a condition precedent to ordering grandparent visitation. The Court sought guidance from the Troxel case. Unfortunately, Troxel did not come this far. Troxel did, however, establish that special deference should be accorded to a parental decision regarding grandparent visitation based upon the fundamental due process right of parents to rear their children. The Washington Statute at issue provided that the Court could order visitation rights for any person “when visitation may serve the best interest of the child…” See Troxel, 530 U.S. at 61-63, 120 S. Ct. at 2057-2058, 147 L. Ed. 2d at 54-55. Of special note, there was no mention of a harm standard in the statute which might have otherwise been sufficient to justify interference with parental autonomy so as to protect a child from harm. In light of the absence of any special deference to the parental decision, a court could, under the statute, overturn any decision by a fit custodial parent regarding visitation whenever a third party brought a petition for visitation based upon a judge's determination of the child's best interests. The statute also appeared to create a presumption in favor of visitation and thereby place the burden on the fit parent to disprove the visitation. Id. at 69, 120 S. Ct. at 2062, 147 L. Ed. 2d at 58. For these reasons, the Troxel Court found the Washington Statute unconstitutional as applied.
What the Troxel Court failed to address is the issue of what level of scrutiny the statute must be subjected to and what standard to apply. Nor did the Court define the exact scope of the parental due process right in the visitation context. Rather, the Troxel Court apparently left these issues to be determined on a case-by-case basis as applied. As noted above, Troxel never addressed the issue of whether a showing of harm or potential harm to a child would be required as a condition precedent to ordering visitation because this was not in the Washington Statute. Thus it goes without saying that the Troxel Court never made a determination of whether a showing of harm had to be proven by a preponderance of the evidence or by clear and convincing evidence.
The case of Watkins v. Nelson, 163 N.J. 235 (2000), provides some additional guidance on the relationship and legal right between a parent and child in the context of a custody struggle between the maternal grandparents and a natural father over his nineteen month old child. In this case, the New Jersey Supreme Court held that the best interest standard applied by the Appellate Division so as to rule in favor of the grandparents violated the fundamental right of the parent to family autonomy. The Court found that custody was a natural and legal right of the parent and that the relationship should not be disturbed except for the strongest of reasons, such as a clear showing of the parent's gross misconduct, unfitness, or other extraordinary circumstances affecting the welfare of the child. Only where the child is in serious physical or psychological danger of harm does the state's parens patriae obligation to protect children come into play. Id. at 245-247.
Watkins is consistent with Troxel, but goes one step further; it provides that the avoidance of harm to a child is a constitutional requirement that must be proven to overcome the presumption in favor of a fit parent's decision and to justify intrusion into family life. Like Troxel, however, Watkins did not establish the standard for such a showing, except that it arguably implied that the clear and convincing standard should be applied in light of the “clear showing” language above. Id. at 245.
As a consequence of Troxel and Watkins, it appears that the only justifiable compelling state interest to overcome a fit parent's decision regarding visitation is the avoidance of harm to the child. If there is no such harm shown, the state's interest will not be compelling enough to infringe upon the fit parent's fundamental constitutional right. Thus when a fundamental right such as parental autonomy is at issue, the statute is subject to strict scrutiny, and the question then becomes whether the state's interest is sufficiently compelling, whether the statute is narrowly tailored to serve that interest, whether the harm alleged is specific enough, and what standard to apply in making such an assessment.
The Moriarty Case
It is upon this backdrop that Moriarty was decided, with the Court addressing the issue of the precise scope of the due process right to be protected, as well as the standard to be applied in determining whether the threshold showing of harm has been made. In holding that grandparents seeking visitation under New Jersey's Grandparent Visitation Statute must prove by a preponderance of the evidence that denial of the visitation sought would result in harm to the child (a burden met by the grandparents in this case), the New Jersey Supreme Court acknowledged that custody and visitation applications by a third party both implicate the fundamental constitutional right to family autonomy and privacy and should be subject to the same constitutional protection, and acknowledged as well that visitation was essentially a form of temporary custody while it was being exercised. See Moriarty, 177 N.J. at 116. However, the Court in Moriarty felt that it would be:
…[U]nrealistic not to distinguish between an award of custody to a third party and grandparent visitation based on the level of intrusion into family life that each entails. The former is obviously a greater invasion of family autonomy and privacy than the latter. It is for that reason that we decline to adopt the position of our colleagues who would require grandparents to prove by clear and convincing evidence the necessity for visitation to avoid harm to the children… We instead approve the preponderance of evidence burden in this statute as fully protecting the fundamental rights of parents when coupled with the harm standard.
Id. at 116-117.
Thus Moriarty sustained the New Jersey Grandparent Visitation Statute by adding a threshold harm standard to satisfy constitutional concerns, and held that in every case where visitation is denied by a fit parent, the grandparents would bear the burden of establishing by a preponderance of the evidence that visitation is necessary to avoid harm to the child. The grandparents' evidence could be either expert or factual, and they could rely on the death of a parent, the break-up of a child's home through divorce or separation, or the termination a long-standing relationship between the grandparents and the child as forming the basis for a finding of harm. Under these circumstances, the potential for harm will have been shown, and the presumption in favor of parental decision-making will be deemed overcome. At this point, an assessment of the visitation schedule would be the only step left to be undertaken.
Id. at 117.
With regard to the evidence of harm presented in the Moriarty case, the New Jersey Supreme Court recognized the Trial Court's findings applying each of the factors set forth in the statute. It recognized the extensive relationship the children had with the grandparents which was made even more significant by their mother's death and the link to their mother through their grandparents, the varied activities done with the grandparents, the poor relationship between the father and the maternal grandparents and the father's desire to protect the children from the grandparents, the continual contact that the children had with the grandparents, the lack of any effect that the visitation would have on the relationship between the grandchildren and their father and stepmother, the good faith of the grandparents in filing the application, and the lack of any history of any type of abuse or neglect by the grandparents. Id. at 118-121. Most importantly, with regard to a finding of harm, the Court recognized the death of the mother and the fact that it believed that it was extremely important that the children continue a bond with their mother's side of the family. In this regard, the Court credited Dr. Judith Greif's testimony, based upon the Family Services Report, which found that the Moriartys were alienating the children from their grandparents, and that that alienation could not be counteracted with the type of short visit proposed by Mr. Moriarty. The Court further credited Dr. Greif regarding her assessment as to the harm which would come to the children if visitation were limited as Mr. Moriarty proposed, as follows:
[T]he harm would be that the alienation would succeed and that the children would believe essentially that half of them, that their mother's half is evil, is damaged, is bad, and that this would cause self esteem problems for the children since the children know that they're made up of their mother and their father. So if their mother's family is so evil and bad, it means that the children themselves, it would mean to the children, that they themselves are half bad or half evil and that this would be a very destructive thing psychologically for the children
Id. at 121.
The Court thus found that visitation with the grandparents was necessary to avoid harm to the children as stated above under the preponderance of the evidence standard, and overcame the presumption in favor of Moriarty's decision making. Id. at 121-122.
In this author's view, the Moriarty Court has completely failed to justify its use of the preponderance of the evidence standard for its finding that harm would befall the children if the grandparent visitation were lessened. The Court should heed the position of its concurring Justice, Justice Verniero, who agreed that a fit parent's decision regarding a child's visitation with a non-parent could be overridden only by evidence of demonstrable physical or psychological harm to the child, but only upon a showing of such harm by clear and convincing proof, not by a simple preponderance of the evidence. Id. at 122. Does the Court really have a valid justification for distinguishing between custody and visitation so as to assert the preponderance of the evidence standard in the case of the latter? Both custody and visitation implicate a fit parent's right to make a decision which finds protection in the Constitution. To distinguish between them is unfair and unrealistic because visitation, as the Court acknowledges, still intrudes upon family autonomy and a fit parent's right to make a decision. If the fit parent does not want his or her child to spend time away from that parent or be cared for or nurtured by anyone else, then visitation under those circumstances interferes just as much with family autonomy and privacy as a change of custody would.
Without requiring the strictest standard under these circumstances, the effect is to allow a third party's rights to overcome those of the fit parent upon a lesser showing. The Court is still dealing with a statute that must have a compelling state interest and be narrowly tailored to meet that interest. It would appear that the preponderance of the evidence standard as opposed to the stricter clear and convincing requirement would dilute the “compelling state interest” and “narrowly tailored” requirements. Nothing in Troxel justifies the Moriarty Court's distinguishing between the preponderance of the evidence and the clear and convincing standard with regard to a showing of harm. In fact, all of the Court's language in Troxel regarding fundamental rights, special weight to be accorded a parent's decision and family autonomy, etc… should be construed to require the stricter standard to be applied in analyzing the grandparent's showing of potential harm under the statute. The application of the stricter standard in this case could very likely result in a denial of grandparent visitation under the statute. It is submitted that the preponderance standard does not fully protect the fundamental constitutional rights of the parents in these circumstances. Under Troxel, it is the care and nurturance of one's children that is a fundamental due process right. Strict scrutiny is required to protect the fit parent's decision. Only the heightened standard will suffice. Had this been applied in Moriarty it is very likely that the outcome would have been different.
Moreover, although the New Jersey Grandparent Visitation Statute may not be unconstitutional on its face because it delineates certain factors which the Court is required to consider before it overcomes the presumption in favor of a fit parent's decision-making rights, it may be that the protections are illusory. The factors lend themselves much too easily to an argument that the lack of grandparent visitation would result in harm to the children in almost any case. In virtually any case, it can be at least alleged and very possibly proven under the preponderance of the evidence standard that each factor has been met. When would there not be an impact upon the relationship between the children and their grandparents when they have had a good prior history? A clear and convincing evidence standard would result in a much higher level of protection for the children, which is what should be required where a fundamental constitutional right is implicated, and would make up for whatever protections are lacking in the statute in terms of the generalized language which allows for an allegation of harm in almost any case. Justice Verniero said it best in his concurring opinion:
Because the Court necessarily acts with less than complete knowledge and understanding of all the complex factors that are relevant in making this determination, and because special deference must be afforded to the wishes of the parent, an additional procedural safeguard is needed to compensate for this inherent limitation in the judicial fact-finding process. A finding that harm exists should be proved not merely by a simple preponderance of the evidence standard, but by the enhanced “clear and convincing evidence” standard that applies when individual Constitutional interests are at stake.
In allegations of psychological harm, it is often easy, and perhaps too easy, to articulate a colorable claim of such harm and thereby undermine parental judgment. Thus the clear and convincing evidence” standard can be of very real assistance in mandating adherence to Constitutional norms, particularly in cases such as this, where the “harm” that would allegedly result from curtailing, but not eliminating, visitation between the Bradts and their grandchildren has been colorly articulated, but perhaps not convincingly demonstrated.
Id. at 122-123.
The higher standard would require more specific evidence and proof of the harm. Allegations alone would be insufficient, as may be the unintended but actual result of the application of the standard under Moriarty. If there is no unfitness or other extraordinary circumstance alleged, the law should not disturb a parent-child relationship. See Watkins. The elevated burden of proof would be consistent with Watkins. The Court's use of the preponderance of the evidence standard dilutes what should be a constitutionally protected fundamental right, subject to the highest level of scrutiny.
It is important to note that the evidence upon which the Moriarty Court relied, Dr. Greif's testimony, was based upon a critique of the report rendered by Family and Social Services. Her conclusions were given without ever interviewing either the children or Mr. Moriarty. The Court's reliance upon Dr. Greif's testimony underscores the point made by Justice Verniero of the inherent limitations placed upon the Court. Dr. Greif's conclusions amounted to just general conclusions about self esteem for any children placed in these circumstances and were not specific or unique to the Moriarty children. It seems that the real danger lies in allowing the decision to be made too easily and too automatically in circumstances where one parent has died and the grandparents are petitioning for visitation, and there is a strained relationship between the grandparents and the other parent. The harm shown should have to be much more specific that what was established here, which is merely generalized harm. The question that should be answered is precisely how the children will be harmed by the absence of visitation with the grandparents, with the requirement that the harm proven be very specific under the clear and convincing evidence standard. For example, will the children's school work and education suffer? Will their ability to socialize themselves into society be effected? Nothing even remotely close to this is currently required.
If questions such as the above cannot be answered in the affirmative under the clear and convincing evidence standard, with specific evidence in support, then isn't the result just a mere substitution of the Court's judgment for the fit parent's decision? Isn't the statute really a conduit for the Court to randomly determine what constitutes harm in its judgment sufficient to overcome the presumption that a fit parent should be able to make his or her own decisions regarding his or her children's care and temporary custody? If the Court is concerned about the children's perception of their mother as evil and having their self-esteem suffer as Dr. Greif testified, it is submitted that the specific harm to these specific children should be clearly and convincingly demonstrated. Under the current standard, very little is required, and the risk that Court decisions will be based upon attenuated and generalized evidence is a very real one.