Since the US Supreme Court decided Troxel v. Granville in 2000, grandparents have had an uphill battle obtaining grandparent visitation. While the New Jersey standard was set in Moriarty v. Bradt a few years later (a case that I was involved in), given that parents’ constitutional rights to raise their children are in play, the hill remains steep as grandparents have to prove harm. What they don’t have to prove is that they were the children’s “psychological parents” to get grandparent visitation, if they could prove that, it sure makes it easier to prove harm. However, if grandparents are seeking joint custody of grandchildren, then they would have to prove psychological parentage as that is required when any non-parent seeks custody.
What is psychological parentage? Psychological parents are individuals who take on the full responsibilities of parenting despite not being a biological or adoptive parent. This has come up in the context of grandparents or other relatives raising a child, sometimes with the natural parent present, and other times in the absence of the natural parent. In other instances, particularly prior to same sex marriage, it has been raised by the non-biological parent.
The issue recently came up in the case of L.N. and C.N. v. B.R. an unreported (non-precedential) Appellate Division opinion released on July 8, 2024. In that case, the grandparents case seeking joint legal custody of their grandson was dismissed because the trial court said that they failed to demonstrate that they were the child’s psychological parents. The Appellate Division reversed for a trial on the issues.
In this case, the plaintiff’s were the maternal grandparents. The parties lived with the plaintiff’s whose daughter died tragically during childbirth. Defendant-father continued to live with the grandparents for two years. During this time, grandparents also provided child care while father worked. After grandparents returned from Florida with the child for a two month trip, father and child moved out of their home in October 2023.
Ten days later, the grandparents filed a Complaint and Order to Show Cause seeking joint legal and primary residential custody (not grandparent visitation). As expected, there were dueling factual certifications. On the return date, the trial judge denied the grandparents application and dismissed the Complaint filing that the grandparents “… could not make a prima facie showing of psychological parenthood because although plaintiffs “did live with the child,” defendant also lived in the home with R.R., never consented to plaintiffs “rais[ing R.R.],” and “did not allow them to be [R.R.’s] primary caregivers.” The trial judge minimized their role to assisting with the child’s needs but that they didn’t perform parental functions. The judge also found that to the extent that there was a bond, there was no expert evaluation indicating that there was a bond.
All of these seem like factual issues that could not be decided on certifications alone – and the Appellate Division agreed.
Worse yet, the trial judge found that the grandparents didn’t even make a prima facie showing that they should have grandparent visitation – essentially finding no harm.
In reversing, the Appellate Division agreed that the trial judge “placed outsized emphasis” on the fact that father was living in their home too.
In reversing, the Appellate Division reiterated the law on this topic, most recently espoused in the W.M v. D.G. case in 2021, as follows:
“[T]he right of parents to the care and custody of their children is not absolute.” [V.C., 163 N.J. at 218]. While there is a presumption supporting a natural parent’s “right to the care, custody, and control of his or her child,” this “presumption in favor of the parent will be overcome by ‘a showing of gross misconduct, unfitness, neglect, or “exceptional circumstances” affecting the welfare of the child[.]'” K.A.F. v. D.L.M., 437 N.J. Super. 123, 131-32 (App. Div. 2014) (quoting [Watkins v. Nelson, 163 N.J. 235, 246 (2000)]). An exceptional circumstance that overrides the presumption favoring the natural parent occurs when a third party has become a child’s “psychological parent,” i.e., where “a third party has stepped in to assume the role of the legal parent who has been unable or unwilling to undertake the obligations of parenthood.” V.C., 163 N.J. at 219 (citing Sorentino v. Fam. & Child.’s Soc. of Elizabeth, 72 N.J. 127, 132 (1976)). The exceptional circumstances element is grounded in the court’s power of parens patriae to protect minor children from serious physical or psychological harm. Watkins, 163 N.J. at 246-47
The court then went on to recite the four part test set forth by the Supreme Court in the V.C. case to prove psychological parentage which was: (1) the petitioner must show that the biological parent “‘consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child; (2) the petitioner and child lived in the same household; (3) the petitioner must have “‘assumed the obligations of parenthood by taking significant responsibility for the child’s care, education and development . . . without expectation of financial compensation” and (4) the petitioner must have been in a parental role for a length of time that was sufficient to have created a bond with the child that was parental and dependent in nature. The court noted that the four prong analysis is fact sensitive.
Moreover, if a third party can prove psychological parentage, they can rebut the constitutionally protected presumption in favor of a fit parent and be placed in parity with the legal parent for purposes of a custody determination. At that point, a best interests analysis under the custody statute is required.
In this case, the Appellate Division held that the trial court did not conduct a robust analysis of the four prong test but rather, “…the judge made conclusionary statements based on conflicting certifications without eliciting any testimony, hearing from experts, or considering further evidence.” The Court further noted that even though this was on the non-dissolution (FD) docket which is often summary by nature, “The FD docket allows actions by non-parent relatives seeking
custody.” Moreover, “…where the plaintiff has “raised a credible claim of psychological parenthood,” the matter should not be treated summarily.”
As to the ruling on grandparent visitation, the court turned to the level of harm that must be demonstrated, quoting from the Slawinski v. Nicholas case, as follows:
“[P]roof of harm involves a greater showing than simply the best interests of the child. [Moriarty, 177 N.J. at 116] (stating that a dispute between a “fit custodial parent and the child’s grandparent is not a contest between equals[,]” consequently “the best interest standard, which is the tiebreaker between fit parents, is inapplicable”). . . . The harm to the grandchild must be “a particular identifiable harm, specific to the child.” Mizrahi v. Cannon, 375 N.J. Super. 221, 234 (App. Div. 2005). It “generally rests on the existence of an unusually close relationship between the grandparent and the child, or on traumatic circumstances such as a parent’s death.” [Daniels, 381 N.J. Super. at 294]. By contrast, missed opportunities for creating “happy memories” do not suffice. Mizrahi, 375 N.J. Super. at 234. Only after the grandparent vaults the proof-of harm threshold will the court apply a best-interest analysis to resolve disputes over visitation details. Moriarty, 177 N.J. at 117.
The Appellate Division noted that in this case, the judge denied grandparent visitation without
plaintiffs having either requested it in their complaint or advocated for it during oral argument. Indeed, a claim of grandparent visitation requires proof of different facts and application of different law from a psychological parenthood claim. Accordingly, this was reversed too without prejudice to the grandparents making the application.
Finally, the Appellate Division agreed that this should be remanded to a new judge.
The take away is that even FD cases require plenary hearings if there are complex facts and circumstances that are in dispute in certifications, particularly where on their face, the allegations could suggest more than either occasional or typical grandparent involvement.
[View source.]
