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Moriarty v. Bradt (A-145-01)


(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Moriarty v. Bradt (A-145-01)

Argued January 21, 2003 -- Decided July 14, 2003

Long, J., writing for a majority of the Court. 

In this appeal, the Court examines the Grandparent Visitation Statute, N.J.S.A. 9:2-7.1, in light of a recent decision by the United States Supreme Court that struck down another states similar statute, and the Court determines whether the trial court properly granted visitation to the grandparents in this case.

Julia Bradt and Patrick Moriarty were married in 1987 and had two children, a son born in 1987 and a daughter born in 1990 (the children). The couple separated and Moriarty instituted a divorce action. At the time of the separation, Bradt was hospitalized for drug abuse and the children remained with Moriarty. Bradts parents (the grandparents) intervened in the divorce action to secure visitation time with the children. In 1991, pursuant to an agreement between the parties, the trial court entered apendente lite order that, among other things, granted Moriarty custody of the children and granted the grandparents visitation. The final judgment of divorce in 1993 granted Moriarty sole custody of the children. Bradt was granted supervised visitation in the grandparents presence.

Both parties remarried in 1994. In August 1994, Bradt was granted unsupervised visitation, which took place in New Jersey. The grandparents saw the children during most weekends that Bradt had visitation. Subsequently, significant animosity developed between Moriarty and the grandparents.

Bradt died in November 1999, apparently from a drug overdose. After a dispute between Moriarty and the grandparents over whether the children should attend the funeral, the grandparents moved on an emergency basis before the trial court to permit the children to attend. The court granted the motion and ordered regular visitation with the grandparents. After a dispute in December over holiday visitation, a consent order was entered that granted visitation until a plenary hearing could be held. The court ordered diagnostic evaluations of Moriarty, the grandparents, and the children. The evaluations of Moriarty and the grandparents resulted in positive reports, and the diagnostic team determined that the grandparents could serve as a conduit with the childrens deceased mother and could be a positive resource for the children in many ways. The report recommended unsupervised grandparent visitation once per month for two full days in New Jersey, in addition to other recommended contact.

In June 2000, Moriarty filed a motion for summary judgment on the issue of grandparent visitation in light of the United States Supreme Courts ruling in Troxel v. Granville, 530 U.S. 57120 S. Ct. 2054147 L. Ed. 2d 49 (2000)(invalidating the State of Washingtons grandparent visitation statute on grounds that it infringed on fit parents constitutional right to rear their children). Moriarty offered the following visitation schedule that he believed to be in the best interests of the children: the grandparents were allowed to visit one day each month during an activity of the children on either Saturday or Sunday and for two hours after such activity. The children would not be permitted to leave Bergen County at any time during the visitation. In August 2000, the trial court heard oral argument on the motion, during which Moriarty argued that Troxel required the trial court to defer to his decision as a fit parent. The court ordered a plenary hearing, as mandated by New Jerseys Grandparent Visitation Statute, to afford the grandparents an opportunity to present expert testimony and witnesses. On November 9, 2000, the court ordered grandparent visitation as follows: (1) monthly visitation alternating between a five-hour visit one month and a visit with two overnights the next month, and (2) one extended visitation period in July or August. The court relied, in part, on the grandparents expert, who opined that such visitation was necessary to protect the children from the harm that would befall them if they were alienated from their grandparents.

Moriarty appealed, arguing that New Jerseys statute is unconstitutional as applied to this case and that the trial court abused its discretion in not abiding by the schedule he had proposed. In an unpublished opinion, the Appellate Division reversed the trial court and remanded for implementation of visitation as requested by Moriarty. The panel found no fault with the judges factual findings, but held that the decision of a fit parent to curtail grandparent visitation cannot, on these facts, be subject to attack.

HELD : Grandparents seeking visitation under New Jerseys Grandparent Visitation Statute, N.J.S.A.9:2-7.1, must prove by a preponderance of the evidence that denial of the visitation they seek would result in harm to the child. In this case, the grandparents met that burden.

1. At common law, grandparents had no legal right to petition for visitation with their grandchildren. Because of the rise in family breakups and the increase in life expectancy, however, the importance of the grandparent-grandchild relationship has been recognized. Although as a general proposition the grandparents role in a childs life may be very important, not all grandparent/grandchild relationships are beneficial. Each case in which grandparents are pitted against parents must stand or fall on its own facts. That is the backdrop on which New Jerseys Grandparent Visitation Statute was enacted. (Pp. 13 to 18).

2. In 1972, New Jersey enacted the Grandparent Visitation Statute. As amended in 1973, the statute afforded standing to grandparents to seek visitation when either or both of the parents of a minor child was or were deceased, or divorced, or living separate and apart. Subsequent amendments removed the requirement that the parents be deceased or divorced and granted standing to siblings to seek visitation. In its present form, the statute underscores the fact-sensitive nature of the inquiry by detailing seven particularized considerations for the court and instructing the court to consider as well any other factor relevant to the childs best interests. The Grandparent Visitation Statute, like all others, is presumed to be constitutional—a presumption that may be rebutted only on a showing that a provision of the Constitution is clearly violated by the statute. (Pp. 18 to 22).

3. The right to rear ones children has been identified as a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Although often expressed as a liberty interest, childrearing autonomy is rooted in the right to privacy. Thus, when the State seeks, by statute, to interfere with family and parental autonomy, a fundamental right is at issue. Such a statute is subject to strict scrutiny and will pass muster only if it is narrowly tailored to serve a compelling state interest. (Pp. 22 to 27).

4. In Troxel, the United States Supreme Court addressed the constitutionality of the Washington State nonparental visitation statute. In a plurality decision, the Court held that the Washington statute impermissibly intruded on the mothers rights in that case. The Court found the statute impermissibly overbroad because it permitted any person to petition for visitation and permitted a court to decide that visitation was in a childs best interest. Also, the Court observed that the statute failed to accord any special weight to a parents decision regarding visitation and, in effect, the statute created a presumption in favor of visitation and placed the burden of disproving visitation on the fit parent. The Court avoided the basic issue of the appropriate level of scrutiny and the standard to be applied. It also 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. Consequently, the Court did not rule on whether a showing of harm or potential harm to a child is required as a condition precedent to ordering visitation. In sum,Troxel instructs that a fit parents fundamental due process right is protected where a nonparental visitation statute respects a fit parents decision regarding visitation by according him or her the traditional presumption that a fit parent acts in the best interests of the child, and by giving special weight to a fit parents determination on visitation. (Pp. 27 to 35).

5. Recently, this Court confronted the appropriate standard for grandparent visitation in a cognate setting. In Watkins v. Nelson, 163 N.J. 235 (2000), in a struggle between grandparents and a natural father over the custody of a child, the Court found that utilizing a best interests standard violated the fundamental right of the father to family autonomy. The Court determined that only a showing of unfitness, abandonment, gross misconduct or exceptional circumstances would overcome the presumption in favor of the parent, and that "exceptional circumstances" requires proof of serious physical or psychological harm or a substantial likelihood of such harm. Watkins explains that avoiding harm to the child is the polestar and the constitutional imperative that is necessary to overcome the presumption in favor of the parents decision and to justify intrusion into family life. (Pp. 39 to 44).

6. Because the Grandparent Visitation Statute is an incursion on a fundamental right, under Watkins, it is subject to strict scrutiny and must be narrowly tailored to advance a compelling state interest. The only state interest warranting the invocation of the States parens patriae jurisdiction to overcome the presumption in favor of a parents decision and to force grandparent visitation over the wishes of a fit parent is the avoidance of harm to the child. When no harm threatens a childs welfare, the State lacks a sufficiently compelling justification for the infringement on the fundamental right of parents to raise their children as they see fit. However, when harm is proved and the presumption in favor of a fit parents decision making is overcome, the court must decide the issue of an appropriate visitation scheduled based on the childs best interests. (Pp. 44 to 46).

7. Because custody and visitation applications by a third party both implicate the right to family autonomy and privacy, both are subject to the same constitutional protection. Nevertheless, an award of custody to a third party is a greater invasion into family life than grandparent visitation. Therefore, the Court declines to require grandparents to prove by clear and convincing evidence the necessity for visitation to avoid harm to the children, and instead approves the preponderance of the evidence burden in the statute as fully protecting the fundamental rights of parents when coupled with the harm standard. Thus, in every case in which visitation is denied, the grandparents bear the burden of establishing by a preponderance of the evidence that visitation is necessary to avoid harm to the child. The grandparents evidence can be expert or factual. If the court agrees that the potential for harm has been shown, the presumption in favor of parental decision making will be deemed overcome. At that point, the parent must offer a visitation schedule. If the grandparents are satisfied, that will be the end of the inquiry. If not, a second step will be taken—an assessment of the schedule. The court should approve a schedule that it finds is in the childs best interest, based on the application of the statutory factors listed in N.J.S.A.9:2-7.1. The Courts resolution results in sustaining the statute by adding a threshold harm standard that is a constitutional necessary because a parents right to family privacy and autonomy are at issue. All other provisions of the statute remain intact. (Pp. 46 to 50).

8. Here, the trial court recognized Troxel and stated that it was giving great deference to Moriartys request. The court also placed the burden of proof on the grandparents. In part, the court found that an extensive relationship existed between the grandparents and the children, and that the grandparents served as a link to the childrens mother, to whom they were very bonded and very distressed by her death. The judge noted the experts opinions that it was extremely important that the children continue a bond with their mothers family and that Moriartys attempts to alienate the children from the grandparents by severely limiting visitation would be destructive psychologically. In short, the court found that visitation with the grandparents was necessary to avoid harm to the children. That finding, which was fully supported by the record, overcame the presumption in favor of Moriartys decision making and allowed the court to fashion carefully a schedule to serve the childrens best interests. (Pp. 50 to 57).

The judgment of the Appellate Division is REVERSED, and the order of the trial court isREINSTATED.

     JUSTICE VERNIERO, concurring in part and dissenting in part, agrees that a fit parents decision regarding his or her childs visitation with a non-parent can be overridden only by evidence of demonstrable physical or psychological harm to the child. However, he believes that the movant must establish such harm by clear and convincing proof, and he would remand the matter to the trial court to determine whether that standard was satisfied.

CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LaVECCHIA, ZAZZALI, and ALBIN join in JUSTICE LONGs opinion. JUSTICE VERNIERO filed a separate opinion concurring in part and dissenting in part.

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Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.

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