In Schulze v. Morris, 361 N.J. Super. 419, 426 (App. Div. 2003), the court concluded that a residential custodial parent’s relocation within the State does not constitute a removal action pursuant to N.J.S.A. 9:2-2, requiring advance approval for the proposed relocation. Although approval is not needed under the statute to move to another part of the State, the court explained:

When a non-residential custodial parent opposes the intrastate relocation of his or her child by the primary residential custodial parent on the basis that the move will be deleterious to the relationship between the child and the non-residential custodial parent, or will be otherwise inimical to the child’s best interests, those factors outlined by Justice Long in Baures, supra, 167 N.J. at 116-17, 770 A.2d 214, as well as other relevant matters, should be considered in determining whether modification of the custodial and parentingtime arrangement is warranted. Of course, as noted by the Court, “not all factors [would] be relevant and of equal weight in every case.” Id. at 117, 770 A.2d 214.

[Schulze, supra, 361 N.J. Super. at 426-27.]

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

A residential custodial parent’s relocation within the State originally appeared on NJ Family Issues on January 8, 2012.

“A party seeking modification of a judgment, incorporating a PSA regarding custody or visitation, must meet the burden of showing changed circumstances and that the agreement is now not in the best interests of a child.” Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div.), certif. denied, 178 N.J. 34 (2003); see also Faucett v. Vasquez, 411 N.J. Super. 108, 119 (App. Div. 2009), certif. denied, 203 N.J. 435 (2010). The issue is “two-fold and sequential.” Id. at 127. The party seeking a modification “must first make a prima facie showing . . . that a genuine issue of fact exists bearing upon a critical question such as the best interests of the child[]. . . . Once a prima facie showing is made, [the party] is entitled to a plenary hearing to resolve the disputed facts.” Id. at 127-28.

When parties voluntarily enter into an agreement, “[s]ubsequent events which should have been in contemplation of the parties as possible contingencies when they entered into the contract will not excuse performance.” Schiff v. Schiff, 116 N.J. Super. 546, 561 (App. Div. 1971), certif. denied, 60 N.J. 139 (1972).

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

A party seeking modification of a judgment, incorporating a PSA regarding custody or visitation, must meet the burden of showing changed circumstances and that the agreement is now not in the best interests of a child originally appeared on NJ Family Issues on December 11, 2011.

On issues of custody and visitation, “[t]he question is always what is in the best interests of the children.” P.T. v. M.S., 325 N.J. Super. 193, 215 (App. Div. 1999) (quoting Giangeruso v. Giangeruso, 310 N.J. Super. 476, 479 (Ch. Div. 1997)). Where the parent seeking visitation is incarcerated, many factors must be considered by the trial court in ascertaining the best interests of the children, in addition to those factors ordinarily considered when making such a determination, and any visitation decision “requires the application of a high degree of care, factual exploration, deliberation and sensitivity to personal and family dynamics and motivations.” Fusco v. Fusco, 186 N.J. Super. 321, 327 (App. Div. 1982).

Therefore, it is essential for an incarcerated parent seeking visitation to provide to the trial court a complete factual background about the parties, their relationship, their children and issues affecting custody and visitation. While a plenary hearing is ordinarily required to enable the trial court to identify the best interests of the children involved in a visitation dispute, Id. at 327; Wagner v. Wagner, 165 N.J. Super. 553, 555 (App. Div. 1979), certif. denied, 85 N.J. 93 (1980), nonetheless an applicant who seeks a plenary hearing must first “show there is a genuine and substantial factual dispute regarding the welfare of the children.” Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007); Faucett v. Vasquez, 411 N.J. Super. 108, 127-28 (App. Div. 2009), certif. denied, 203 N.J. 435 (2010); see also R. 5:8-6 (requiring the court to “set a hearing date” if it “finds that the custody of the children is a genuine and substantial issue”).

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

It is essential for an incarcerated parent seeking visitation to provide to the trial court a complete factual background about the parties, their relationship, their children and issues affecting custody and visitation originally appeared on NJ Family Issues on November 14, 2011.

“Our law recognizes the family as a bastion of autonomous privacy in which parents, presumed to act in the best interests of their children, are afforded self-determination over how those children are raised.” In re D.C., 203 N.J. 545, 551 (2010). A parent’s right to parental autonomy is recognized as “a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution” that is “rooted in the right to privacy.” Moriarty, supra, 177 N.J. at 101; see also N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 38 (2011); Watkins v. Nelson, 163 N.J. 235, 245 (2000); V.C., supra, 163 N.J. at 218. Therefore, in an action between a fit parent and a third party, a presumption of parental autonomy exists in favor of the parent. See Watkins, supra, 163 N.J. at 244. Both custody and visitation applications by a third party are subject to the same constitutional protection because both implicate the right to family autonomy and privacy. Moriarty, supra, 177 N.J. at 116.

N.J.S.A. 9:2-7.1 provides that a grandparent may seek an order for visitation and bears the burden “to prove by a preponderance of the evidence that the granting of visitation is in the best interests of the child.” However, that standard encroached upon the fundamental right of parents to make decisions regarding the care, custody and nurturing of their children, a right that allows the State to intrude only as an exercise of parens patriae authority to avoid harm to the child. Moriarty, supra, 177 N.J. at 114-15. Addressing this conflict, our Supreme Court explained that, by conditioning grandparent visitation upon a “best interests” showing, the Legislature improperly placed the rights of parents and grandparents on an equal footing. The Court stated,

[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.

[Moriarty, supra, 177 N.J. at 116.]

The Court therefore held that, “in every case in which 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. However, when the presumption in favor of parental decision making does not apply, “the court should approve a schedule that it finds is in the child’s best interest, based on the application of the statutory factors.” Ibid.

In defining the scope of this “fundamental” right, these authorities address the right of the “parent,” not one who has assumed a parental role. N.J.S.A. 9:2-13(f) defines “parent” as “a natural parent or parent by previous adoption.”

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

In every case in which 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; however, when the presumption in favor of parental decision making does not apply, the court should approve a schedule that it finds is in the child’s best interest originally appeared on NJ Family Issues on November 13, 2011.

Custody and visitation orders are subject to modification at any time “upon a showing of a material change in circumstances.” Hoy v. Willis, 165 N.J. Super. 265, 275-76 (App. Div. 1978). The party seeking a modification has the burden to show it is warranted. Mastropole v. Mastropole, 181 N.J. Super. 130, 136 (App. Div. 1981) (citing Beck v. Beck, 86 N.J. 480, 496, n.8 (1981)). The issue is whether circumstances have changed in a manner that will impact the welfare of the child. See Hoy, supra, 165 N.J. Super. at 276 (“At all times the best interests of the child should be the guiding principle and the paramount considerations are the child’s safety, happiness and mental, physical and emotional welfare.”); Fantony v. Fantony, 21 N.J. 525, 536 (1956).

“`The matter of visitation is so important . . . that if a plenary hearing will better enable a court to fashion a plan of visitation more commensurate with a child’s welfare,’ a plenary hearing must be required by the court even if the parties have waived it.” Fusco v. Fusco, 186 N.J. Super. 321, 327 (App. Div. 1982) (quoting Wagner v. Wagner, 165 N.J. Super. 553 (App. Div. 1979), certif. denied, 85 N.J. 93 (1980)).

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Custody and visitation orders are subject to modification at any time upon a showing of a material change in circumstances originally appeared on NJ Family Issues on November 13, 2011.

When deciding matters involving child custody, “the court’s primary consideration is the best interests of the children.” Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). This requires focusing on “the safety, happiness, physical, mental and moral welfare of the children.” Ibid. (internal quotation marks omitted). “The matter of parental visitation is not to be considered lightly,” Wagner v. Wagner, 165 N.J. Super. 553, 557 (App. Div. 1979), but “custody is always temporary and can be reassessed based on a change in circumstances.” Feldman v. Feldman, 378 N.J. Super. 83, 96 (App. Div. 2005). “A party seeking modification of a judgment, incorporating a [MSA] regarding custody or visitation, must meet the burden of showing changed circumstances and that the agreement is now not in the best interests of a child.” Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div.), certif. denied, 178 N.J. 34 (2003).

“A plenary hearing is required when the submissions show there is a genuine and substantial factual dispute regarding the welfare of the children, and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute.” Hand, supra, 391 N.J. Super. at 105; see also R. 5:8-6 (requiring the court to “set a hearing date” if it “finds that the custody of children is a genuine and substantial issue”). Even where a party waives a plenary hearing, “the matter of visitation is so important, especially during the formative years of a child, that if a plenary hearing will better enable a court to fashion a plan of visitation more commensurate with a child’s welfare, nonetheless it should require it.” Wagner, supra, 165 N.J. Super. at 555.

When an issue of child custody or parenting time is presented and “[t]he trial court’s order was based on its evaluation of conflicting affidavits and adopt[ed] the assertions of one party over the other without the benefit of a plenary hearing,” Mackowski v. Mackowski, 317 N.J. Super. 8, 11 (App. Div. 1998), we have reversed and remanded for such a hearing, id. at 14; see also Wilke v. Culp, 196 N.J. Super. 487, 501 (App. Div. 1984) (finding that “[i]t is basic that a case should not be decided merely on the basis of conflicting affidavits”), certif. denied, 99 N.J. 243 (1985). Additionally, “disputes implicating the welfare of a child and involving conflicting contentions and opinions of lay and expert affiants must be submitted to a plenary hearing.” Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982).

The court has recognized

that the relocation of a child by the residential custodial parent from one location in New Jersey to another may have a significant impact upon the relationship between the child and the non-residential custodial parent that may constitute a substantial change of circumstances warranting modification of the custodial and parenting-time arrangement.

[Schulze v. Morris, 361 N.J. Super. 419, 426 (App. Div. 2003).]

Typically, a judge’s determination would be entitled to deference. Abouzahr, supra, 361 N.J. Super. at 157.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

The relocation of a child by the residential custodial parent from one location in New Jersey to another may have a significant impact upon the relationship between the child and the non-residential custodial parent that may constitute a substantial change of circumstances warranting modification of the custodial and parenting-time arrangement originally appeared on NJ Family Issues on November 2, 2011.

In certain family actions affecting a child, “the court has the power, if necessary, to appoint counsel” or a GAL for the child. Luedtke v. Shobert, 342 N.J. Super. 202, 214 (App. Div. 2001). The decision to appoint a GAL or law guardian under the Rule is left to the “broad discretion” of the Family Part judge. Gyimoty v. Gyimoty, 319 N.J. Super. 544, 550 n. 1 (Ch. Div. 1998). Such appointment, “which entails considerable expense, should be utilized only where the interests of the child are truly adverse to those of the parent(s). One example of such adverse interest would be the situation where neither parent is a fit custodian.” Mayer v. Mayer, 150 N.J. Super. 556, 563 (Ch. Div. 1977) (discussing appointment of law guardian prior to adoption of Rule 5:8A). In custody and relocation cases, we have suggested that where the party seeking relief, which will impact upon the child, is not represented and the opposing party is, appointing a law guardian may be appropriate to ensure the child’s interests are “adequately protected.” Luedtke, supra, 342 N.J. Super. at 214.

The GAL is permitted to hire an attorney (a law guardian) for the children if the GAL deemed it necessary under Rule 5:8B(a)(7).

Rule 5:8B, Appointment of Guardian Ad Litem, provides in relevant part:

In all cases in which custody or parenting time/visitation is an issue, a guardian ad litem may be appointed by court order to represent the best interests of the child or children if the circumstances warrant such an appointment. The services rendered by a guardian ad litem shall be to the court on behalf of the child. . . . The guardian ad litem shall file a written report with the court setting forth findings and recommendations and the basis thereof, and shall be available to testify and shall be subject to cross-examination thereon. In addition to the preparation of a written report and the obligation to testify and be cross-examined thereon, the duties of a guardian may include, but need not be limited to, the following:
1. Interviewing the children and parties.
2. Interviewing other persons possessing relevant information.
3. Obtaining relevant documentary evidence.
4. Conferring with counsel for the parties.
5. Conferring with the court, on notice to counsel.
6. Obtaining the assistance of independent experts, on leave of court.
7. Obtaining the assistance of a lawyer for the child (Rule 5:8A) on leave of court.
8. Such other matters as the guardian ad litem may request, on leave of court.

A “guardian ad litem acts on behalf of the court for the benefit of the child and serves as an independent factfinder, investigator, and evaluator of what furthers the best interests of the child.” Isaacson v. Isaacson, 348 N.J. Super. 560, 574 (App. Div.), certif. denied, 174 N.J. 364 (2002). It is well understood that “[a] court-appointed guardian ad litem’s services are to the court,” not the parties. In re M.R., 135 N.J. 155, 173 (1994) (citing official comment to Rules 5:8A and B).

The GAL’s duty is to issue a report and be available to testify, at the discretion of the court.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

In certain family actions affecting a child, the court has the power, if necessary, to appoint counsel or a GAL for the child originally appeared on NJ Family Issues on October 26, 2011.

Our grandparent visitation statute constitutes a departure from the common law, which afforded no legal right for persons to petition for visitation with their grandchildren. Moriarty v. Bradt, 177 N.J. 84, 95 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). Even with the passage of the statute, the law still recognizes the presumptive force of a parent’s “right to rear one’s children [which] is so deeply embedded in our history and culture that it has been identified as a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.” Id. at 101.

“[I]n every case in which 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; see also N.J.S.A. 9:2-7.1a.

To meet that burden, the grandparent must demonstrate a “special need for continued contact,” one that exceeds that associated with “an ordinary grandparent-child relationship and its unwanted termination.” Daniels v. Daniels, 381 N.J. Super. 286, 293 (App. Div. 2005) (holding that the trial court properly dismissed the grandmother’s visitation complaint without allowing discovery where her complaint did not allege that the children would suffer any harm from the lack of visitation). The grandparent must present “a clear and specific allegation of concrete harm to the children.” Id. at 294; see also Rente v. Rente, 390 N.J. Super. 487, 491 (App. Div. 2007) (reversing the trial court’s award of unsupervised visitation after a trial, finding that the fact that the grandparents had baby-sat for the children approximately twenty-five times a year while the parent was at work was insufficient to satisfy the required burden of harm); Mizrahi v. Cannon, 375 N.J. Super. 221, 233-34 (App. Div. 2005) (reversing the trial court’s decision granting grandparent visitation after a plenary hearing, and holding, that conventional harms such as the “loss of potentially happy memories,” and the deprivation of a grandparent’s “unconditional love, affection and caring” are insufficient to compel visitation under the statute).

In Moriarty, supra, the Court affirmed the trial court’s decision to allow visitation with the maternal grandparents over the father’s objection where the children’s mother had passed away and the children had an unusually close relationship with the grandparents prior to their mother’s death. 177 N.J. at 121. The Court explained that in establishing that visitation is necessary to avoid harm to the children, the grandparents “may rely on the death of a parent . . . .” Id. at 117. The Court indicated that “many of the fifty grandparent visitation statutes specifically recognize the potential for harm when a parent has died or a family breakup has occurred and visitation is denied.” Ibid. In affirming the trial court’s decision, the Court found that “the death of the mother and the fact that it is extremely important that the children continue a bond with their mother’s side of the family” was one of the court’s “most critical findings.” Id. at 121.

The court has also recognized that the death of a parent could create a “special need for continued contact” between the child and the grandparents from the deceased parent’s side of the family. Daniels, supra, 381 N.J. Super. at 293. In Daniels, we explained that “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 . . . .” Id. at 294.

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

In every case in which 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 originally appeared on NJ Family Issues on August 20, 2011.

The grandparent visitation statute provides:

a. A grandparent . . . of a child residing in this State may make application before the Superior Court . . . for an order for visitation. It shall be the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best interests of the child.
b. In making a determination on an application filed pursuant to this section, the court shall consider the following factors:
(1) The relationship between the child and the applicant;
(2) The relationship between each of the child’s parents or the person with whom the child is residing and the applicant;
(3) The time which has elapsed since the child last had contact with the applicant;
(4) The effect that such visitation will have on the relationship between the child and the child’s parents or the person with whom the child is residing;
(5) If the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;
(6) The good faith of the applicant in filing the application;
(7) Any history of physical, emotional or sexual abuse or neglect by the applicant; and
(8) Any other factor relevant to the best interests of the child.
c. With regard to any application made pursuant to this section, it shall be prima facie evidence that visitation is in the child’s best interest if the applicant had, in the past, been a full-time caretaker for the child.

[N.J.S.A. 9:2-7.1.]

Our adoption statute provides, in pertinent part: “The entry of a judgment of adoption shall . . . terminate all parental rights and responsibilities of the parent towards the adoptive child except for a parent who is the spouse of the petitioner and except those rights that have vested prior to entry of the judgment of adoption[.]” N.J.S.A. 9:3-50(c)(1).

In Mimkon v. Ford, 66 N.J. 426, 429 (1975), the Court considered whether the maternal grandmother of a child whose mother had died was “entitled to visit [the child] by virtue of N.J.S.A. 9:2-7.1 when the natural father and his second wife, who . . . legally adopted the child, refuse to permit visitation[.]” The particular adoption statute that the Court considered vis-à-vis the grandmother’s request provided that “[t]he entry of a judgment of adoption shall terminate all relationships between the child and his parents, and shall terminate all rights, duties and obligations of any person which are founded upon such relationships[.]” N.J.S.A. 9:3-30(A).

Although the Legislature at one time declined to enact a provision that would have permitted “‘visitation or other type of communication with the child after the adoption by any person who . . . was biologically related to the adopted child[,]‘” W.P., supra, 163 N.J. at 172, no provision of the current Adoption Act expressly prohibits such visitation or communication.

In Moriarty v. Bradt, 177 N.J. 84 (2003), the Court cited studies confirming “the importance of the grandparent/grandchild relationship in the lives of children” because the “love, nurturance, and acceptance which grandchildren have found in the grandparent/grandchild relationship ‘confers a natural form of social immunity on children that they cannot get from any other person or institution.’” Id. at 97 (quoting Arthur Kornhaber M.D. & Kenneth L. Woodward, Grandparents/Grandchildren: The Vital Connection xiii-xiv (1981)). In consideration of these findings, the Court declined to prohibit grandparent visitation outright even where “fundamental right[s]” of “family and parental autonomy,” id. at 103, were implicated.

In deference to those “fundamental right[s]” the Court held that the grandparent visitation statute “is subject to strict scrutiny and will only pass muster if it is narrowly tailored to serve a compelling state interest.” Ibid. (citations omitted). To achieve that purpose and strike the appropriate balance between the rights of parents (whether natural or adoptive) and the rights of grandparents, the Court reiterated the standard it adopted three years earlier in Watkins v. Nelson, 163 N.J. 235. (2000):

“Since the right of parents to the custody of their minor children is both a natural and legal right, the law should not disturb the parent/child relationship except for the strongest reasons and only upon a clear showing of a parent’s gross misconduct or unfitness or of other extraordinary circumstances affecting the welfare of the child.”

[Moriarty, supra, 177 N.J. at 112 (quoting Watkins, supra, 163 N.J. at 245).]

The Court in Moriarty concluded that “avoiding harm to the child is the polestar and the constitutional imperative that is necessary to overcome the presumption in favor of the parent’s decision and to justify intrusion into family life.” Id. at 113. The Court “approve[d]” imposing “the preponderance of the evidence burden” upon grandparents invoking the visitation statute, and held that such burden will “fully protect[] the fundamental rights of parents when coupled with the harm standard.” Id. at 117.

In this case, the children were adopted in New York. In that context, New York’s adoption statute provides that upon a child’s adoption, “the birth parents . . . shall have no rights over [the] child” and the “adoptive parents . . . and the adoptive child shall sustain toward each other the legal relation of parent and child . . . .” N.Y. Dom. Rel. Law § 117(1)(a), (c) (Consol. 2011).

New York courts have permitted “‘open adoption[s]‘, . . . in which contact, including visitation, is permitted between the adopted child and members of his birth family” where such contact “may serve to promote the best interests of the child.” In re Adoption of Anthony, 448 N.Y.S.2d 377, 378 (Fam. Ct. 1982).

Section 72 of New York’s Domestic Relations Law specifically grants a grandparent the right to seek visitation either where the parents are deceased or “where circumstances show that conditions exist which equity would see fit to intervene.” N.Y. Dom. Rel. Law, § 72(1) (Consol. 2011). In People ex rel. Sibley v. Sheppard, 54 N.Y.2d 320, 322 (1982), the New York Court of Appeals “uph[eld] the right of a natural grandparent to visitation rights with her grandchild, when authorized by court decree, despite an adoption of the child and the protestations of the adoptive parents” where such visitation was “in the best interest of [the] adopted child.” The Court rejected the adoptive parents’ argument that section 117 of the Domestic Relations Law “severs all of the child’s ties to its natural family,” finding that such an analysis of the statutory language was “overbroad[] and would interfere with the court’s ability to protect the best interest of the child.” Id. at 324. In fact, it is now well-established in New York that “[a] grandparent may seek visitation with a grandchild even after parental rights have been terminated or the child has been freed for adoption.” In re Ann M.C. v. Orange Cnty. Dep’t of Social Servs., 682 N.Y.S.2d 62, 64 (App. Div. 1998).

In th this case, considering that the children were adopted according to the laws of New York, the judge must address which adoption law applies. This choice will not affect the analysis, however, as the court has determined that New Jersey’s adoption statute does not preclude a request for grandparent visitation.

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

New Jersey’s adoption statute does not preclude a request for grandparent visitation originally appeared on NJ Family Issues on June 29, 2011.

A party who seeks modification of a judgment that incorporates a property settlement agreement regarding custody or visitation must meet the burden of showing changed circumstances and that the agreement is no longer in the best interests of the child. Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div.), certif. denied, 178 N.J. 34 (2003); see also Finamore v. Aronson, 382 N.J. Super. 514, 522-23 (App. Div. 2006). The issue is “two-fold and sequential.” Faucett v. Vasquez, 411 N.J. Super. 108, 127 (App. Div. 2009), certif. denied, 203 N.J. 435 (2010). The party seeking a modification “must first make a prima facie showing . . . that a genuine issue of fact exists bearing upon a critical question such as the best interests of the child[]. . . . Once a prima facie showing is made, [the party] is entitled to a plenary hearing to resolve the disputed facts.” Id. at 127-28. Indeed, when “a genuine and substantial issue” concerning parenting time exists, the court is required to refer the case to mediation pursuant to R. 5:8-1.

The Legislature has found and declared “the public policy of this State to assure minor children of frequent and continuing contact with both parents [after divorce] and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.” N.J.S.A. 9:2-4. Both parties here have a fundamental right to “the custody, care and nurturing of their child[].” Watkins v. Nelson, 163 N.J. 235, 245 (2000). As neither has a right that is superior to the other, “the sole benchmark” to a determination of the parenting time issue is the best interests of the child, Sacharow v. Sacharow, 177 N.J. 62, 80 (2003), that is, what will protect the “safety, happiness, physical, mental and moral welfare of the child,” Beck v. Beck, 86 N.J. 480, 497 (1981), “no matter what the parties have agreed to.” P.T. v. M.S., 325 N.J. Super. 193, 215 (App. Div. 1999).

When a case concerns visitation and not custody, the court has recognized that “‘the matter of visitation is so important, especially during the formative years of a child, that if a plenary hearing will better enable a court to fashion a plan of visitation more commensurate with a child’s welfare,’ a plenary hearing must be required by the court even if the parties have waived it.” Fusco v. Fusco, 186 N.J. Super. 321, 327 (App. Div. 1982). See also V.C. v. M.J.B., 163 N.J. 200, 228-29 (2000), cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000).

The factors that are to be applied in a best interests analysis are:

the parents’ ability to agree, communicate and cooperate in matters relating to the child; . . . the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; . . . the parents’ employment responsibilities; and the age and number of the children.

[N.J.S.A. 9:2-4(c)]

See V.C., supra, 163 N.J. at 227-28; Hand v. Hand, 391 N.J. Super. 102, 105-106 (App. Div. 2007).

In advancing the best interests of the child, “the courts should seek to minimize, if possible, conflicting pressures placed upon a child and to give effect to the reasonable agreement and expectations of the parents concerning the [issue in dispute] before their marital relationship foundered, subject to the predominant objective of serving the child’s welfare comprehensively.” Asch v. Asch, 164 N.J. Super. 499, 505 (App. Div. 1978).

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

A party who seeks modification of a judgment that incorporates a property settlement agreement regarding custody or visitation must meet the burden of showing changed circumstances and that the agreement is no longer in the best interests of the child originally appeared on NJ Family Issues on June 24, 2011.