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Grandparent Visitation History And Current StatusBy Expert Author: Gary Peterson
The emotional attachments between grandparents and grandchildren have been described as unique in that the relationship is exempt from the psychoemotional intensity and responsibility that exists in parent/child relationships. The love, nurturance, and acceptance which grandchildren have found in the grandparent/grandchild relationship confer a natural form of social immunity on children that they cannot get from any other person or institution.
Common law status:
Here grandparent visitation lawyer plays an important role and under the old common law; grandparents had no legal right to petition for visitation with their grandchildren. Kristine L. Roberts, State Supreme Court Applications of Troxel v. Granville and the Courts' Reluctance to Declare Grandparent Visitation Statutes Unconstitutional, 41 Fam. Ct. Rev. 14, 15 (2003.) In Mimkon v. Ford, 66 N.J. 426 (1975), the New Jersey Supreme Court gave several reasons for the denial of grandparent visitation,
1. Ordinarily the parent's obligation to allow the grandparent to visit the child is moral, and not legal.
2. The judicial enforcement of grandparent visitation would divide proper parental authority, thereby hindering it.
3. The best interests of the child are not furthered by forcing the child into the midst of a conflict of authority and ill feelings between the parent and grandparent. Where there is a conflict as between grandparent and parent, the parent alone should be the judge, without having to account to anyone for the motives in denying the grandparent visitation.
Some suggest imposing a role for grandparents is "antithetical to the norms of self-reliance and independence which were attributed to the nuclear family."
Grandparent Visitation Statutes:
Visitation practices to some degree, respond to social morays and practices. Practices changed change as grandparents lived longer and had more opportunity to forge a sustained and lengthy relationship with their grandchildren. Ibid. The rise in family breakups also played a part in reinvigorating the grandparents' role." Denham, the Influence of Grandparents on Grandchildren: A Review of the Literature and Resources, 38 Fam. Rel. 345, 345 (1989). In 1972, New Jersey enacted its Grandparent Visitation Statute. N.J.S.A. 9:2-7.1 which provides for visitation consistent with the best interests of the child.
Troxel v. Glanville:
The right to rear one's children is embedded in our history and is a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See Wisconsin v. Yoder, 406 U.S. 205, (1972) (explaining "primary role" of parents in raising their children as an enduring American tradition" also noting the right of parental autonomy.) "The custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Prince v. Massachusetts 321 U.S. 158, 166 (1944).
Troxel involved unusual facts, paternal grandparents whose son had not married the mother before he died. The grandparents were given monthly visitation, but sought additional monthly visitation along with summer visits. The Court held the State had no authority to interfere with the parent's right to rear their child. There was no allegation that the mother sought to discontinue visitation between the grandparents and her children; rather, she sought to limit that visitation to an amount that she believed was in her daughters' best interest. Id. at 71.
Moriarty v. Brandt, 177 N.J. 84 (2003) followed Troxel and sets forth a demanding standard for the grant of grandparent visitation. Grandparent visitation attorney a parent is presumed to have the right to make decisions about the welfare of her child and the statute may only intervene to protect the children from serious physical or psychological harm. Moriarty involved facts somewhat like Troxel. Paternal grandparents were seeking visitation after their child had died. Some visitation was provided but there were periodic disputes over its extent. Moriarty set forth a demanding standard saying "interference with parental autonomy will be tolerated only to avoid harm to the health or welfare of a child." For those believing in the benefit of grandparent visitation, language in the decision is unfortunate, "a dispute between a fit custodial parent and the child's grandparent is not a contest between equals. We have long recognized that the best interest standard, which is the tiebreaker between fit parents, is inapplicable when a fit parent is in a struggle for custody with a third party."
Troxel and Moriarty were cases involving the absence of a parent. A different situation is presented may be presented in a contested divorce or post-divorce proceedings where the parties are asking the state to intervene and set down conditions of custody and visitation. If a parent had some right to visitation, grand-parent's arguments are helped if they are joined in a petition by the non-custodial parent.
Newest Word RK v. DL:
Courts following Moriarty have reached differing conclusions. In Daniels v. Daniels, 381 N.J. Super. 286 (App. Div. 2005), a grandmother sought visitation against the opposition of both parents. Give their joint opposition, the court required proof of a specific injury to the child which the grandparent could not meet.
Misrachi v. Cannon, 375 N.J. Super. 221 (App. Div. 2005) involved paternal grandparents, an absent parent, and a remarried mother. The child had lived with a grandparent for a year, and they marshalled a number of factors supporting visitation that the trial court granted. The appeals court reversed finding that while the grandparents recited various statements about injury to the child; they had not satisfactorily proved it.
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