Denial Of Grandparent’s Petition For Visitation Reversed
- July 28, 2014
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In the recent New Jersey Appellate Division case, C.D.M. v. S.M.P., a grandparent visitation case, the Appellate Division reversed the decision of the Family Court which denied a grandparent’s application for visitation because the lower court did not follow the appropriate procedures in denying the petition. In this case, the Plaintiff, C.D.M. is the maternal grandmother of a little girl born in May of 2012 and whom the court identifies as “Nancy.” The Plaintiff’s daughter died while giving birth to Nancy. The Defendant and Nancy’s biological father, S.M.P. initially tried to reach a mutually acceptable visitation arrangement with C.D.M., but in the end he denied her requests to visit Nancy or to allow Nancy to have contact with her half brother, referred to as “Nathan.” The Plaintiff has legal and physical custody of Nathan. In September of 2012, the Plaintiff filed a Complaint on behalf of herself and her grandson Nathan (then five years old), asking the court to order visitation with Nancy under N.J.S.A. 9:2-7.1. S.M.P. responded to the Plaintiff’s Complaint by filing a counterclaim seeking “sole custody,” an accounting of any and all funds collected for Nancy’s benefit upon her mother’s death, and denying the Plaintiff’s request for grandparent visitation. The Family Court judge stated that New Jersey’s grandparent/sibling visitation statute “requires a very high showing . . . before a judge . . . who is a stranger to the child . . . can overrule a parental decision,” and he was unsure if this case met that standard. The judge then asked the parties, with their attorneys to spend a few minutes to try to work something out. After a period of time, the Plaintiff’s attorney reported that the parties were unable to reach a resolution. The judge emphasized that the “law presumes that a father, a mother knows what’s best for a child and that . . . [he] shouldn’t overrule that decision.” The judge then denied Plaintiff’s requested relief and dismissed her Complaint as a matter of law. The record reflects that the judge specifically declined to hear from the Defendant’s attorney at the return date of the Order to Show Cause, citing that based upon what he had read in the parties’ pleadings and certifications, the Plaintiff had not established a sufficient basis to overcome the Defendant’s objections. Under Rule 2:5-1(b) the judge supplemented his analysis and findings once the Plaintiff appealed from his decision. According to the Appellate Division, according to R.K. v. D.L., 434 N.J. Super. 113, 137-40 (App. Div. 2014), it addressed the procedural and substantive approach the Family Part must use when dealing with grandparent visitation cases. These approaches are grounded in the concerns embedded in the State’s Constitution as were expressed in the New Jersey Supreme Court decision in Moriarty v. Brandt, 177 N.J. 84 (2003) and in the state statute N.J.S.A. 9:2-7.1. The Appellate Court went on to hold that 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 court found that in this case, the trial court did not properly consider all relevant factors when it dismissed the Plaintiff’s Complaint as a matter of law and therefore reversed and remanded the matter back to the trial court for a de novo re-examination of the Plaintiff’s Complaint consistent with the procedures and principles set forth in R.K.If you anticipate that you would like to petition the court to obtain grandparent visitation rights it is imperative that you seek out the advice of an experienced attorney who can evaluate your case and advise you on your rights and obligations. For more information about grandparent visitation rights, custody and visitation, parenting time, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.