Docket No. A-3382-20
Decided February 7, 2023
Submitted by New Jersey Family Lawyer, Jeffrey Hark.
In a recent unpublished decision the Appellate Division of New Jersey remanded an order denying grandparent visitation.
In G.T. v. D.D., plaintiff G.T. (Grandmother) is the mother of defendant D.D. (Mother), who gave birth to the Grandchild in 2009. On May 26, 2020, Grandmother filed an emergent application in the Family Part seeking joint custody of, and parenting time with, Grandchild under the Grandparent and Sibling Visitation Statute, N.J.S.A. 9:2- 7.1 (the Act), and as a psychological parent, see V.C. v. M.J.B., 163 N.J. 200 (2000). According to Grandmother, she has been providing care to Grandchild since shortly after her birth, when Mother suffered post-partum psychosis which led to bi-polar disorder. She alleged that Grandchild lived with her for long periods, and that she consistently provided her with shelter, necessities, vacations, and emotional and educational support. Grandmother alleged that Grandchild had been residing with her for approximately a month after virtual schooling was implemented because of the COVID-19 pandemic when Mother removed the child from her home without reason. According to Grandmother, Mother has prevented her from having contact with the child since the removal.
On June 17, 2021, the trial court issued a written opinion, which it read into the record, denying Grandmother’s application. The court made the following findings of fact. Although Mother has always had custody of Grandchild, Grandmother spent considerable time helping to raise the child since the time of her birth. This included Grandmother caring for Grandchild for weeks, and sometimes months, at a time, taking her on trips, providing necessities, and planning birthday parties.
Despite the warmth between Grandmother and Grandchild, Grandmother and Mother maintained a cold relationship. Mother believes Grandmother interferes with her parenting of Grandchild by, among other things, making plans for the child, which Mother sometimes has to cancel, causing strife with the child. In addition, Mother believes Grandmother wishes to usurp her role as parent. Grandmother believes Mother suffers from a mental health condition that causes her to have periods of mania and depression, which prevent her from providing the child with a stable household. Grandmother testified that when the child is with her Mother, she does not attend school regularly, does not complete her homework, stays up all night, sleeps in her school uniform, which she then wears to school the next morning, and does not maintain her personal hygiene. According to Grandmother, when the child resides with her, these issues are largely ameliorated.
The Court rejected Grandmother’s claim to both visitation and being the psychological parent. Grandmother appealed.
The Appellate Division found that the trial court failed to make adequate findings of fact and conclusions of law as to both the grand parent visitation and psychological parent analysis. The matter was remanded for further proceedings.
To make a claim to be a psychological parent, “the legal parent must consent to and foster the relationship between the third party and the child; the third party must have lived with the child; the third party must perform parental functions for the child to a significant degree; and most important, a parent-child bond must be forged.” V.C., 163 N.J. at 223. “What is crucial here is not the amount of time but the nature of the relationship.” Id. at 226. “Once a third party has been determined to be a psychological parent to a child . . . he or she stands in parity with the legal parent.” Id. at 227.
In the case above, there was no evidence presented that Grandmother acted in any other capacity other than a grandparent, as opposed to being a parent in the eyes of the child.
To obtain grandparent visitation, over the objection of a fit parent “must prove by a preponderance of the evidence that denial of visitation will harm the child.” Major v. Maguire, 224 N.J. 1, 7 (2006). “Substantively, it is a ‘heavy burden.'” Slawinski v. Nicholas, 448 N.J. Super. 25, 34 (App. Div. 2016) (quoting Major, 224 N.J. at 18). Only “[i]f . . . the potential for harm has been shown [can] the presumption in favor of parental decision making . . . be . . . overcome.” Id. at 33 (quoting Moriarty, 177 N.J. at 117). Thus, the grandparent must make “a clear and specific allegation of concrete harm to the children.” Daniels, 381 N.J. Super. at 294.
This is a difficult and harsh burden to overcome, although not impossible.
If you have questions about grandparent visitation, psychological parent, custody, parenting time, divorce, prenuptial agreements, marital home, alimony, child support, equitable distribution, or mediation, contact the experienced matrimonial divorce attorneys at Hark & Hark today.
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