In grandparent visitation dispute, Court must interview orphaned teenage minor regarding her interests

This case, B.J.P. v. K.F.W.,  involves  the efforts by a minor’s paternal grandmother to obtain visitation rights with the child. The minor is a 16 year old whose mother is deceased Since 2004, she has been raised by her paternal aunt and uncle, but they did not adopt her. They were initially granted joint legal custody of the child with the child’s father in 2005 (and they had residential custody), but in 2010 the father’s custody was terminated and they were awarded sole custody. The child has had no contact with her father since 2010.  They are considered to be her psychological parents. 

When grandparents seek to have visitation access with their minor grandchild and are denied access by a custodian who is not the natural parent, a state statute N.J.S.A. 9:2-7.1 spells out the 8-part standard to be applied when the case is brought to the Family court’s attention. The Court must determine what would be in the minor’s best interests by applying those standards. These include an examination of the relationship between the grandparent and the child, the relationship among all of the parties, and “any other factor relevant to the best interest of the child.”

There was evidence that the teenager was emailing with the grandmother and expressed interest in speaking to the court. The trial court placed the burden of proof on the grandparent/plaintiff to prove that the child would be actually harmed by the absence of visitation. The Judge did not interview the granddaughter in the process, and denied the grandmother’s petition for visitation.

 On appeal by the grandmother, the Appellate Division held that the trial court had applied the wrong legal standard, and instead, should utilize the statutory factors. The appeals court further held that  the trial judge should have conducted an in camera (in chambers) interview of the child before just applying the statutory factors. The Appellate Division reversed and remanded, ordering that the interview be conducted as well as such other proceedings as might be necessary. 

Call us for legal advice on difficult relationships between elders and their family members … 732-382-6070 

 

 

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