Law Lessons from RABONE GOOLSARRAN, ET AL. V. ROBERT RUSHEFSKY, App. Div., A-1084-08T3, September 29, 2009:

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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, 116 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). Accordingly, there is a presumption favoring deference to a fit parent’s choice about visitation which must be overcome before the court may enter an order requiring visitation with grandparents on the ground that it would be in the child’s best interest. Id. at 115, 117.

A grandparent must establish, by a preponderance of the evidence, “exceptional circumstances” warranting the interference. Id. at 114, 117. A grandparent may meet that burden by demonstrating that he or she has become a psychological parent to the child and stands in the shoes of a parent. Id. at 113-16, 116 n.3; see, e.g., V.C. v. M.J.B., 163 N.J. 200, 221-28 (2000) (discussing the significance of the role played by a parent’s partner), cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000). Or, a grandparent may satisfy the burden and entitlement to an order “forc[ing] grandparent visitation over the wishes of a fit parent” by showing that the “visitation is necessary to avoid harm to the child.” Moriarty, supra, 177 N.J. at 115, 117.

Moriarty provides guidance for assessing the adequacy of the evidence of potential harm. Id. at 115-18. The “evidence can be expert or factual.” Id. at 117. “[T]he termination of a long-standing relationship between the grandparents and the child, with expert testimony assessing the effect of those circumstances, [can] form the basis for a finding of harm.” Ibid. And, grandparents also “may rely on the death of a parent” to establish the harm. Ibid. Thus, “harm of the type recognized in Moriarty 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 v. Daniels, 381 N.J. Super. 286, 294 (App. Div. 2005).

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