Law Lessons from PHILLIPS v. GROGAN, App. Div., A-2596-07T3, August 4, 2008:

An order compelling a parent to permit a child to visit a grandparent implicates the parent’s fundamental “right to family autonomy and privacy.” Moriarty v. Bradt, 177 N.J. 84, 114, 116 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed.2d 78 (2004). “[T]he only state interest warranting the invocation of the State’s parens patriae jurisdiction . . . to force grandparent visitation over the wishes of a fit parent is the avoidance of harm to the child. When no harm threatens a child’s welfare, the State lacks a sufficiently compelling justification,” and the parents may “raise their children as they see fit.” Id. at 115. When harm is established, the presumption in favor of a fit parent’s choice about visitation is overcome, and the court may require visitation with grandparents when it is in the child’s best interests. Ibid. The showing of harm adequate to overcome the presumption in favor of a fit parent’s decision is a “threshold” that is “a constitutional necessity”; it is a prerequisite to entry of an order compelling grandparent visitation in the child’s best interests. Id. at 118.

In Moriarty, the Supreme Court explained the showing of harm a grandparent must make in order to warrant interference with the parent’s fundamental right to make a decision about visitation. When “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.” Id. at 117. In that context, “the termination of a long-standing relationship between the grandparents and the child, with expert testimony assessing the effect of those circumstances, could form the basis for a finding of harm.” Ibid. “When visitation is not denied outright but the grandparents challenge the sufficiency of the proffered schedule, the same standard [applies]. They will be required to prove that visitation is necessary and that the proffered visitation schedule is inadequate to avoid harm to the child.” Id. at 118.

Applying Moriarty, the court has recognized that “[i]n order to avoid imposing an unnecessary and unconstitutional burden on fit parents who are exercising their judgment concerning the raising of their children, trial courts must focus first on whether the grandparent has made a clear and specific allegation of concrete harm to the children.” Daniels v. Daniels, 381 N.J. Super. 286, 294 (App. Div. 2005). If the plaintiff does not plead or present proof of harm to the child, “the complaint is properly dismissed” for failure to establish the threshold harm required by Moriarty. Ibid.; Mizrahi v. Cannon, 375 N.J. Super. 221, 234 (App. Div. 2005).

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