Grandparent Visitation Denied Without Showing Of Harm To Grandchildren
- September 4, 2015
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In Loser v. Witt, the Plaintiffs appealed the dismissal of their Complaint seeking grandparent visitation. The Appellate Division affirmed the decision of the Family Court. In 2005, the Defendants, Melissa Witt and Eric Loser were living together along with Melissa’s son from a previous relationship, when Melissa gave birth to their son. The Plaintiffs in this case are Eric’s parents. In 2007, Melissa and Eric split up which resulted in litigation with regard to child custody, upon which the relationship between Melissa and the Plaintiffs, Eric’s parents, deteriorated. Eventually Melissa and Eric resolved their differences but the relationship between Melissa and the Plaintiffs never recovered. In 2013, Eric disallowed the Plaintiffs from having any contact with the children. Eric believed, at the time, that his father was harassing Melissa and attempting to undermine her relationships with the children. In August of that year, the Plaintiffs filed a Complaint in the Family Court seeking visitation with their grandchildren. The Plaintiffs requested a plenary hearing and the opportunity to conduct a psychological evaluation of the children. The Plaintiffs contended that they had a very close relationship with the children – seeing them two to three times a week and had taken them on annual vacations. They admitted though that they were never full time care-takers. After oral argument, the Family Court judge dismissed the Plaintiff’s Complaint concluding that the Plaintiffs “failed to meet the required threshold showing of [particularized] harm to subject the parents and the children to further litigation.” The Plaintiffs appealed. According to the Appellate Division, parents have a fundamental right to “make decisions regarding the care and custody of their children.” Moriarty v. Bradt, 177 N.J. 84,88, 827 A.2d 203 (2003). Ordinarily, courts do not interfere with a fit parent’s decision to prevent contact between his or her child and the child’s grandparents. Rente v. Rente, 390 N.J. Super. 487, 493, 915 A.2d 1099 (App. Div. 2007). Grandparents can force “grandparent visitation over the wishes of a fit parent” if they can prove by a preponderance of the evidence that visitation is necessary to avoid harm to the child. Moriarty, supra, 177 N.J. at 115, 117. To persuade the court that a child will be harmed by the absence of visitation, grandparents may present either expert or factual evidence. First, grandparents must make a “clear and specific allegation of concrete harm to the children.” Daniels v. Daniels, 381 N.J. Super. 286, 294, 885 A.2d 524 (App. Div. 2005). In this case, the Appellate Court found that the Plaintiffs have not alleged concrete facts demonstrating that the Defendant’s parental decision to prohibit contact will cause significant harm to the children. Therefore, the decision of the Family Court was affirmed. Child custody and grandparent’s rights cases are of the most emotional and difficult cases in all of family law. If you anticipate that you may want to petition the court for a modification of your current child custody arrangement it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about child custody, parenting time, child support, or other family law matters in New Jersey visit the DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.