When a child is involved in a family proceeding, usually in child custody and visitation disputes, the court generally applies a “best interests” standard. That is, the court prioritizes a child’s best interest in making its decisions. Thus, it will ask the question, “is this action in the best interests of the child?” Sometimes it is not clear what that is though, especially when in competition with other principles such as that parents’ right to raise their children as they see fit, the general wellbeing of the child, and the importance of protecting the child from harm.
Case Study: A.P. v. K.P.
The New Jersey court evaluated the confrontation of these ideas in A.P. v. K.P., NO. A-2566-16T4 (N.J. Sup. Ct. App. Div. May 10, 2018),when a set of paternal grandparents sought to overturn the court approved visitation of the maternal grandparents with the granddaughter. In March 2016, the maternal grandparents applied for grandparent visitation with the granddaughter, which the court granted without conducting a grandparent visitation hearing. The paternal grandparents sought to vacate this order, arguing that the grandparents should not be allowed to visit the granddaughter for a number of reasons, including that they did not handle the granddaughter’s autism or anxiety well. They also alleged that the maternal grandparents evicted the parents’ from their condominium they were living in, in spite of knowing that they were having financial difficulties. The parents joined the paternal grandparents in their objections to visitation by the maternal grandparents.
The underlying court held that the parents’ reasons for excluding the maternal grandparents from seeing the granddaughter were “just wrong” and cited that the grandparents seemed to be making a good faith effort to work with the child and the parents, and that the fundamental rights of the child and the best interest of the child were paramount. The judge concluded that the grandchild should have a relationship with the maternal grandparents and giving them the opportunity to “get closer together” was in the granddaughter’s best interest.
On review, the court looked again at the best interests of the child, but also looked at the “fundamental right of the parents to raise a child as he or she sees fit” and how that right “encompasses the authority to determine visitation by third parties, including grandparents.” It noted, significantly, that this fundamental right of the parents yields to protecting the child where harm could exist. The court found that if a showing of potential harm was made, the presumption would be in favor of the parents’ decision, rather than the court; if the maternal grandparents could show that there was harm in not allowing them visitation, visitation with them would take precedent over the parents’ autonomous right to make decisions for their children. A showing of potential harm is must be more than simply a disdain for those seeking visitation or as simple as the loss of the opportunity to make happy memories. The harm to the child must be identifiable and particular. The court will uphold the parents’ rights to decide the visitation of their child unless a party can prove that the harm in not seeing the child. Here, the maternal grandparents failed to prove the potential harm of not being able to see the granddaughter. Instead, they only insisted that they wanted a relationship with their granddaughter.
The court found that trial court did not correctly apply this standard when they first granted the maternal grandparents rights to visit the child. The case was therefore reversed and remanded.
The family court is often balancing a number of competing principles. The most important guiding principle is to make decisions that are in the best interests of the child. The court also holds the parents’ rights to make decisions for their children in high esteem, but will sometimes prioritize other interests. One of these interests is in protecting the child from harm.