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Bill Would Ease Evidentiary Standards For Grandparental, Sibling Visitation

Bill Would Ease Evidentiary Standards For Grandparental, Sibling Visitation

New legislation is afoot that would lower the burden of proof for grandparents and siblings seeking visitation rights in contested cases.

David Gialanella

06-29-2011

New legislation is afoot that would lower the burden of proof for grandparents and siblings seeking visitation rights in contested cases.

The bill, S-2975, introduced Monday, would alter the doctrine of Moriarty v. Bradt , 177 N.J. 84 (2003), which holds that grandparents may be awarded visitation regardless of parental objections if a threshold “potential for harm” standard — not set forth in the Grandparent Visitation Act, N.J.S.A. 9:2-7.1 — is met by a preponderance of the evidence.

“This … standard places an onerous burden on an applicant to prove that the child would be specifically or concretely harmed if the court denies the order of visitation, especially if the applicant has been unable to establish a relationship with the child because the child’s parent refuses to allow visitation,” the bill’s statement reads.

Under the act, if an applicant for visitation was once the child’s full-time caregiver, that is deemed prima facie evidence that visitation is in the child’s best interest. The bill would also make that state of facts prima facie evidence of potential for harm if visitation is denied.

Four other instances would amount to prima facie evidence of both the best-interest and potential-for-harm standards: (1) if one or both parents is deceased; (2) if the parents are divorced; (3) if the applicant demonstrates a past or ongoing close relationship with the child; or (4) if the applicant has tried to establish a close relationship and the parents have refused to permit it.

In any of those instances, the court would be required to order at least one mediation session to attempt to resolve the conflict. After an evidentiary hearing, the court would decide the visitation request based on statutory factors that include the relationship between the child and applicant, the relationship between the parents or caretakers and the applicant and the time passed since the child’s last contact with the applicant.

However, “animosity between the child’s parent and the applicant shall not be a basis for the court to deny an order for visitation,” the bill says.

Weinberg says she undertook the legislation after her office was contacted by grandparents whose applications had been denied in court. The bill, drafted by the Office of Legislative Services, “seems to makes sense,” she says.

In Moriarty , the Court sought to repair New Jersey‘s visitation statute, enacted in 1971, so that it would pass the U.S. Supreme Court’s scrutiny. In Troxel v. Granville , 530 U.S. (2000), the U.S. Court struck down Washington State’s visitation statute as overbroad and held parental autonomy “to make decisions concerning the care, custody and control of their children” is protected under the 14th Amendment’s due process clause.

Justice Virginia Long noted that Troxel “stopped short of invalidating nonparental visitation statutes per se and declined to define the precise scope of the parental due process right in the visitation context.” The Moriarty Court thus added the potential-for-harm standard and found that two maternal grandparents who sought visitation with the children of their former son-in-law, who objected, met the standard by a preponderance of the evidence.

Justice Peter Verniero dissented in part, saying applicants should be held to a higher evidentiary standard, clear and convincing evidence.

Francis Donahue of Donahue, Hagan, Klein, Newsome, O’Donnell & Weisburg in Morristown, who represented the grandparents, Lynn Jack and Patricia Bradt, says Moriarty made the burden for nonparent visitation applicants too high, calling it “a classic case of success under a very strict standard.”

Donahue, who has not yet studied the Weinberg bill, says, “The problem with the existing law is … it’s very difficult to prove harm before the harm occurs. It becomes a heavy burden to get an expert to say … there’s an identifiable, significant harm.”

Hackensack lawyer Robert Corcoran, who represented the losing parent, Patrick Moriarty, at the Court, agrees that although the Bradts won, ” Moriarty made it more difficult for grandparents to get visitation.”

At the trial court level, “most of the judges I’ve seen are erring on the side of caution” and rejecting those applications, says Corcoran, who practice exclusively family law and represents both sides in parent-grandparent visitation disputes.

Corcoran says S-2975 poses constitutional concerns and could “open up the opportunity to take another bite at the apple” for losing visitation applicants. “If this law expands [ Moriarty ] … these people are going to come back with a change of circumstances,” he says.

Another family court practitioner, Woodbury solo Michael Pimpinelli, says he doubts the visitation law, as amended by S-2975 , would pass constitutional muster. “Any time you use the words ‘prima facie’ to ease the burden of the moving party, those are the words that would raise a Troxel red flag,” he says. “I think Moriarty is a stretch as it is.”

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