On certification to the Superior Court, Appellate Division.
In this appeal, the Court examines the Grandparent Visitation Statute, N.J.S.A. 9:2-7.1, in light of a recent decision by the United States Supreme Court that struck down another state's similar statute, and the Court determines whether the trial court properly granted visitation to the grandparents in this case.
Julia Bradt and Patrick Moriarty were married in 1987 and had two children, a son born in 1987 and a daughter born in 1990 (the children). The couple separated and Moriarty instituted a divorce action. At the time of the separation, Bradt was hospitalized for drug abuse and the children remained with Moriarty. Bradt's parents (the grandparents) intervened in the divorce action to secure visitation time with the children. In 1991, pursuant to an agreement between the parties, the trial court entered a pendente lite order that, among other things, granted Moriarty custody of the children and granted the grandparents visitation. The final judgment of divorce in 1993 granted Moriarty sole custody of the children. Bradt was granted supervised visitation in the grandparents' presence.
Both parties remarried in 1994. In August 1994, Bradt was granted unsupervised visitation, which took place in New Jersey. The grandparents saw the children during most weekends that Bradt had visitation. Subsequently, significant animosity developed between Moriarty and the grandparents.
Bradt died in November 1999, apparently from a drug overdose. After a dispute between Moriarty and the grandparents over whether the children should attend the funeral, the grandparents moved on an emergency basis before the trial court to permit the children to attend. The court granted the motion and ordered regular visitation with the grandparents. After a dispute in December over holiday visitation, a consent order was entered that granted visitation until a plenary hearing could be held. The court ordered diagnostic evaluations of Moriarty, the grandparents, and the children. The evaluations of Moriarty and the grandparents resulted in positive reports, and the diagnostic team determined that the grandparents could serve as a conduit with the children's deceased mother and could be a positive resource for the children in many ways. The report recommended unsupervised grandparent visitation once per month for two full days in New Jersey, in addition to other recommended contact.
In June 2000, Moriarty filed a motion for summary judgment on the issue of grandparent visitation in light of the United States Supreme Court's ruling in Troxel v. Granville,
The opinion of the court was delivered by: Long, J.
In Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), the United States Supreme Court struck down what it denominated as a "breathtakingly broad" grandparent visitation statute enacted by the State of Washington. That decision has cast a cloud over the grandparent visitation statutes of the remaining forty-nine states. In this case, we are called on to assess our own Grandparent Visitation Statute (N.J.S.A. 9:2-7.1) in light of Troxel and in light of our prior jurisprudence on the subject. More particularly, because the grandparents in this case seek to override the father's determination regarding visitation, we are asked to test the statute against the fundamental right of fit parents to make decisions regarding the care and custody of their children. We hold that grandparents seeking visitation under the statute must prove by a preponderance of the evidence that denial of the visitation they seek would result in harm to the child. That burden is constitutionally required to safeguard the due process rights of fit parents. Finally, we hold that, in this case, the grandparents have met that burden.
Julia Bradt and Patrick Moriarty were married on April 26, 1987. The marriage resulted in the birth of two children, Brian in 1987 and Tara in 1990. Eventually the couple separated and Moriarty instituted a divorce action. At the time of the separation, Bradt was hospitalized for drug abuse and the children remained with Moriarty. In order to secure visitation time with Brian and Tara, Bradt's parents, Lynn Jack Bradt and Patricia Thornton Bradt (the grandparents), intervened in the divorce action.
A hearing was held on September 25, 1991. At that time, Bradt withdrew her application for custody and the parties reached an agreement regarding custody and visitation. On October 28, 1991, the trial court entered a pendente lite order memorializing the agreement. By its terms, the court granted Moriarty custody of the children and granted the grandparents visitation on alternate weekends from Thursday evening through Sunday evening. The court further ordered the grandparents to pick up and return the children to Moriarty's home in Linden, New Jersey. Bradt was initially denied visitation unless supervised by her parents. The trial court also appointed a mental health expert to conduct an examination of Moriarty, Bradt, and the children.
On April 15, 1993, after an eight-day trial, a dual final judgment of divorce was entered. Both Moriarty and Bradt had proven their claims of extreme cruelty and Moriarty had additionally proven that Bradt was an habitual drug user. As a result, Moriarty was granted sole custody of the children. Bradt was granted supervised visitation in the grandparents' presence, which was allowed to take place in Pennsylvania because the grandparents had agreed to submit to the jurisdiction of the Family Part on every aspect of the case; permitted one hour of telephone contact with the children on non-visitation days; ordered to continue psychiatric therapy; required to undergo random weekly drug testing with the results forwarded to Moriarty; ordered to abstain from non-prescription drug and alcohol use; and required to attend weekly meetings of Alcoholic Anonymous and other support groups. Moreover, Bradt and the grandparents were forbidden to have the children treated medically except in an emergency situation.
Both parties remarried in 1994. In August 1994, Bradt was granted unsupervised visitation, which took place in New Jersey. The grandparents saw the children during most weekends that Bradt had visitation. However, significant animosity developed between Moriarty and the grandparents. Moriarty claimed that he feared for his children's safety when they visited their grandparents alone. On one occasion while with the grandparents in the Poconos, Brian pulled a cup of hot chocolate down on himself, resulting in second- and third-degree burns to his face, neck, and chest. The grandparents took Brian to the local hospital for treatment and had a neighbor who was a pediatrician, Dr. Chen, make sure that he had been treated properly. After learning of the incident, when the grandparents returned the children Moriarty approached them in an aggressive manner. As a result, the grandmother obtained a final restraining order against Moriarty.
On another occasion, Brian broke his leg while in the grandparents' care. In addition, Moriarty testified that the children were bruised and cut when they were returned from visitation, as well as sick and dirty. Moriarty also testified that the grandparents and Bradt took Brian for steroid treatments for stress-induced asthma for months without informing him. However, the grandparents' long-time friend testified that they had a warm, close relationship with the children and their son James testified that they exhibited good parenting skills.
Bradt died on November 8, 1999, apparently from an overdose of prescription pain medication and cold medicine. On hearing about Bradt's death, Moriarty testified that he contacted his family priest and a bereavement counselor to determine how to handle the situation in a way that would be in the children's best interests. According to Moriarty's testimony, the bereavement counselor advised that the children should attend Bradt's wake and that a bereavement ceremony at the children's church for their mother after her funeral was appropriate; however, the counselor advised that it would not be in the children's best interests to attend their mother's funeral. Moriarty relayed that information to the grandparents. In response, they moved on an emergency basis before the trial court to permit the children to attend their mother's funeral. The court granted the motion and ordered "regular and continual visitation with the grandparents."
On December 3, 1999, the grandparents filed an emergency application for holiday visitation with the children because Moriarty had refused their request. On December 16, 1999, the trial court held a hearing on the issue, resulting in a consent order granting holiday visitation with the children from December 26 to December 28, 1999, and thereafter, once every five weeks, consisting of two consecutive overnight visits until a plenary hearing on the merits could be held. Among other things, the court ordered diagnostic evaluations of Moriarty, the grandparents, the children, and Bradt's husband.
On January 26, 2000, a court-ordered probation investigation report was filed with the court, which noted that Moriarty insisted on supervised visitation because he believed that the grandparents were responsible for their daughter's psychiatric problems. Moriarty further told the evaluators that he feared that the grandparents could have a negative influence on the children.
Family Services completed the court-ordered diagnostic evaluations and the team filed its report. In that evaluation, the Family Services team noted that the grandmother had obtained a bachelor's degree in zoology, as well as a master's degree and a doctorate in biology. For approximately eighteen years, the grandmother was a professor and research scientist at Lehigh University. Since 1993, she had been employed at Muhlenberg College as a professor of environmental science. The grandfather graduated with a dual degree in mechanical and industrial engineering and had taken other courses, including business courses at Harvard. He founded a business that manufactured a type of conveyor belt based on technology that he had patented. He served as that company's chief executive officer for thirty years. In addition, the grandfather had worked as a business consultant and a teacher.
Moriarty's background is similarly impressive. He obtained a bachelor's degree in business and economics, as well as a master's degree in economics. He joined the Air Force and attended Flight School. He subsequently served several years in the Air Force Reserve. At the time of the report, Moriarty was employed as an executive vice-president and partner running a hedge fund. He and his wife have five children: two children from her previous marriage, his two children, and one child in common.
Based on its interviews, the team determined that the grandparents could "serve as a conduit with the children's deceased mother and can be a positive resource for the children in many ways." Accordingly, the report recommended unsupervised grandparent visitation once per month for two full days in New Jersey, while the grandparents stayed overnight in a hotel and the children slept at home. Moreover, the report recommended that the grandparents attend the children's weekend activities; have regular telephone and email contact with them; have holiday visitation, so long as it did not interfere with the children's activities; and if no contraindications, visitation should progress to taking place once monthly at the grandparents' home, subject to the children's scheduled activities.
In June 2000, Moriarty filed a motion for summary judgment on the issue of grandparent visitation in light of the United States Supreme Court's ruling in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), that had invalidated the State of Washington's grandparent visitation statute on constitutional grounds because it infringed on fit parents' constitutional rights to rear their children. Moriarty then offered the following visitation schedule that he believed to be in the best interests of the children: the grandparents were allowed to visit one day each month during an activity or activities of either or both of the children, on either Saturday or Sunday, and for two hours after such activity for lunch or dinner. That schedule further provided that all visitation would occur in Bergen County and that the children would not be permitted to leave Bergen County at any time during the visitation. Moriarty agreed that by the fifth of each month, he would furnish the grandparents with the date, time, and place of the activity or activities that they would be invited to attend. In his certification in support of the motion, Moriarty reiterated that he was "not attempting to eliminate contact between [his] children and their maternal grandparents"; rather, he was seeking to establish a visitation schedule that he believed was in his children's best interests.
On June 28, 2000, the trial court adjourned Moriarty's summary judgment motion and granted additional summer visitation to the grandparents for five consecutive days in July 2000. Moriarty applied for a stay of that summer visitation order, which was denied. On August 7, 2000, the trial court heard additional oral argument on Moriarty's motion for summary judgment. Moriarty argued that Troxel factually was similar to his case and thus, the trial court was required to defer to his decision, as a fit parent, regarding grandparent visitation. The grandparents responded that Moriarty's visitation proposal was effectively no visitation. In addition, although the grandparents conceded that a fit parent's decision regarding visitation is entitled to some deference, they argued that the New Jersey statute mandates a hearing to determine whether the proposed visitation is in the best interest of the children.
In denying the motion, the trial court noted the "extremely heavy burden" that the grandparents would have to carry under the ruling in Troxel. The trial court ordered a plenary hearing to afford the grandparents the opportunity to present expert testimony and their witnesses. At the hearing, the court noted that the grandparents had modified their request to once a month visitation, alternating between two overnights and daytime visits of five to six hours. Furthermore, the grandparents sought two weeks of extended visitation over the summer -- one week in July and one in August.
The hearing concluded on October 20, 2000, with the trial court reserving its decision. During the hearing, however, the court entered an order granting the grandparents overnight visitation with the children at their home in Easton, Pennsylvania for two nights on the weekend of October 6, 2000. On November 9, 2000, after detailed factual findings, the trial court rendered its decision and ordered grandparent visitation as follows: (1) monthly visitation alternating between a five hour day visit one month and a visit with two overnights the next month and (2) one extended visitation period in July or August. The court specifically noted that the reason it ordered that visitation was its reliance on the grandparents' expert who opined that such visitation was "to protect the children from the harm that would befall them if they were alienated from their grandparents."
Moriarty appealed the trial court's order, primarily on the basis that New Jersey's statute is unconstitutional as applied in this case and accordingly, that the trial court abused its discretion in not abiding by the schedule that he had proposed. While that appeal was pending, Moriarty continued to make additional demands on the grandparents' visitation schedule ordered by the court. Those conditions included: taking the children to Roman Catholic mass; refraining from drinking any alcohol in the children's presence; not leaving the children alone, separating them, or placing them with strangers; not leaving them alone with their Uncle George, "an admitted homosexual"; and if the children became ill or injured, returning them home immediately. The trial court granted the additional condition regarding emergency illnesses or injuries. With respect to church attendance, the grandparents obviated the need for a court ruling by agreeing to take the children to mass. The other conditions that Moriarty sought unilaterally to impose on the grandparents' visitation time with the children were denied.
In an unpublished opinion, the Appellate Division reversed the trial court and remanded for implementation of visitation as requested by Moriarty. The panel stressed that, "[w]e find no fault with the judge's factual findings[.]" Slip op. at 20. However, it noted that Moriarty's "substantive due process rights were violated by the imposition of the visitation ordered," in light of his alternative proffer. Slip op. at 19. In view of Troxel, the panel held that the decision of a fit parent to curtail grandparental visitation "cannot, under these facts, be subject to attack." Slip op. at 20. "[I]nterference with plaintiff's parental decision to afford the limited visitation offered was constitutionally impermissible." Slip op. at 21.
We granted the grandparents' petition for certification, 174 N.J. 189 (2002). We also granted amici status to the State of Jersey, the AARP, and the American Civil Liberties Union (ACLU). We now reverse.
The grandparents argue that the Grandparent Visitation Statute is constitutional; that a fit parent's decisions are entitled to deference, but are not absolute; and that the decision of the Appellate Division "eviscerates the grandparent visitation statute and thirty years of jurisprudence" supporting the rights of grandparents. The Attorney General and the AARP support those contentions.
Moriarty counters that the Appellate Division's decision is in accordance with Troxel and our prior case law and that the statute as applied is unconstitutional. The ACLU supports Moriarty and argues that the statute, as applied, violates due process by unconstitutionally infringing on the right of a fit parent to make decisions regarding his or her child's care and upbringing. More particularly, the ACLU urges us to hold that such parental decisions can be overridden only by clear and convincing evidence of demonstrable harm.
At common law, grandparents had no legal right to petition for visitation with their grandchildren. Kristine L. Roberts, State Supreme Court Applications of Troxel v. Granville and the Courts' Reluctance to Declare Grandparent Visitation Statutes Unconstitutional, 41 Fam. Ct. Rev. 14, 15 (2003) (footnotes omitted); Ann M. Stanton, Grandparents' Visitation Rights and Custody, 7 Child & Adolescent Psychiatric Clinics of N. Am. 409, 411 (1998); Scott C. Boen, Note, Grandparent Visitation Statutes: The Constitutionality of Court Ordered Grandparent Visitation Absent a Showing of Harm to the Child, 20 J. Juv. L. 23, 28 (1999) (footnote omitted). In Mimkon v. Ford, we summarized five basic reasons for the historical denial of grandparent visitation:
(1) Ordinarily the parent's obligation to allow the grandparent to visit the child is moral, and not legal.
(2) The judicial enforcement of grandparent visitation rights would divide proper parental authority, thereby hindering it.
(3) The best interests of the child are not furthered by forcing the child into the midst of a conflict of authority and ill feelings between the parent and grandparent.
(4) Where there is a conflict as between grandparent and parent, the parent alone should be the judge, without having to account to anyone for the motives in denying the grandparent visitation.
(5) The ties of nature are the only efficacious means of restoring normal family relations and not the coercive measures which follow judicial intervention.
[66 N.J. 426, 431 (1975) (quoting Duncan Gault, Statutory Grandparent Visitation, 5 St. Mary's L.J. 474, 480-81 (1973) (internal citations omitted)).]
That reasoning flowed from the social science research of the day. In fact, historically, there was practically no research regarding grandparents because most studies that related to family life were guided by emphasis on the "isolated nuclear family." Chrystal C. Ramirez Barranti, The Grandparent/Grandchild Relationship: Family Resource in an Era of Voluntary Bonds, 34 Fam. Rel. 343, 344 (1985). Even positing a role for grandparents was viewed as "antithetical to the norms of self-reliance and independence which were attributed to the nuclear family." Ibid. (citations omitted). Originally, those attitudes reflected the fact that longevity rates did not allow most grandparents to play a long-term role in their grandchildren's lives. Id. at 343.
Things began to change as grandparents lived longer and had more opportunity to forge a sustained and lengthy relationship with their grandchildren. Ibid. The rise in family breakups also played a part in reinvigorating the grandparents' role. Id. at 346; see Thomas E. Denham & Craig W. Smith, The Influence of Grandparents on Grandchildren: A Review of the Literature and Resources, 38 Fam. Rel. 345, 345 (1989) (noting that increased longevity rates and demographic changes, such as family disruption through divorce, alcoholism, and/or other social problems, "have opened the door to a new and growing emphasis on grandparenthood"). Against that setting, new explorations of the grandparents' role in American society were begun in the late 1950s through the 1970s. Ramirez Barranti, supra, 34 Fam. Rel. at 344. Additional initiatives were aimed at developing "typologies" of grandparenthood. Ibid.; see also Denham & Smith, supra, 38 Fam. Rel. at 347 (noting that typologies assist in characterizing "types of behavior" and "style of interaction" that take place). Many such typologies emerged, including but not limited to historian, mentor, role model, and nurturer. Ramirez Barranti, supra, 34 Fam. Rel. at 345 (citing Arthur Kornhaber, M.D. & Kenneth L. Woodward, Grandparents/Grandchildren: The Vital Connection (1981)).
Moreover, the importance of the grandparent-grandchild relationship in the lives of children has been confirmed. See id. at 346-47 (describing studies by Baranowski, Kornhaber and Woodward, and Mead in support of that contention).
The emotional attachments between grandparents and grandchildren have been described as unique in that the relationship is exempt from the psycho-emotional intensity and responsibility that exists in parent/child relationships. 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 346 (citing Kornhaber & Woodward, supra, at xiii-xiv).]
Commentators have suggested that, "[i]n the absence of a grandparent/grandchild relationship, children experience a deprivation of nurturance, support, and emotional security." Id. at 346-47 (describing studies by Kornhaber and Woodward and Mead). Indeed, Kornhaber and Woodward posited that "'the complete emotional well-being of children requires that they have a direct, and not merely derived, link with their grandparents.'" Id. at 347 (quoting Kornhaber & Woodward, supra, at 163). Mead advanced the notion that "when an individual does not have intergenerational family relationships there is a resulting lack of cultural and historical sense of self." Ibid.
To be sure, those broad conclusions would not necessarily apply to a grandparent with an emotional disorder or serious character or behavioral flaws or to one who placed the child in danger or sought to subvert the relationship of the child to his parents. See, e.g., King v. King, 828 S.W.2d 630, 632 (Ky.) (noting that children "ordinarily benefit" from contact with grandparents that are "physically, mentally, and morally fit"), cert. denied, 506 U.S. 941, 113 S. Ct. 378, 121 L. Ed. 2d 289 (1992); Stanton, supra, 7 Child & Adolescent Psychiatric Clinics of N. Am. at 410 (noting that grandparents who interfere with childrearing and parental discipline can negatively affect family relationships). Grandparents, like every other group of humans in society, are not monolithic. They range across the spectrum from wholesome nurturers to bad influences. See Karen Czapanskiy, Grandparents, Parents and Grandchildren: Actualizing Interdependency in Law, 26 Conn. L. Rev. 1315, 1324-31 (1994) (noting that psycho-social research indicates that not all grandparent/grandchild relationships are beneficial to grandchildren; rather, many grandparent/grandchild relationships merely provide grandchildren with ephemeral benefits). Thus, although as a general proposition the grandparents' role in a child's life may be very important, each case in which grandparents are pitted against ...