# Moriarty v. Bradt > Supreme Court of New Jersey · July 14, 2003 · 177 N.J. 84 URL: https://www.frixlaw.com/law-library/cases/9691684 ## Case - **Full name:** Patrick Moriarty, Plaintiff-Respondent, v. Julia E. Bradt, Defendant, and Lynn Jack Bradt and Patricia Bradt, Intervenors-Appellants - **Court:** Supreme Court of New Jersey - **Decided:** July 14, 2003 - **Citations:** 177 N.J. 84; 827 A.2d 203; 2003 N.J. LEXIS 699 - **Precedential status:** Published - **Opinion:** Concurring in part by Verniero - **Judges:** Verniero - **Cited by:** 93 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9691684 ## How later opinions describe it (automated extraction) - holding that for the New Jersey GVS to be narrowly tailored to the state’s compelling parens patriae interest in the well-being of children, courts must impose a burden on grandparents “establishing by a preponderance of the evidence that visitation is necessary to avoid harm … - finding sufficient harm in the potential loss of self-esteem to the children, who could come to believe that they are half-evil if alienated from their maternal side of the family, so as to outweigh the father's right to restrict grandparental visitation - stating that a dispute between a "fit custodial parent and the child's grandparent is not a contest between equals[,]" consequently "the best interests standard, which is the tiebreaker between fit parents, is inapplicable" - holding that because parental rights are fundamental, grandparents bear the burden of proving by preponderance of evidence that visitation is necessary to avoid harm ## Opinion text VERNIERO, J., concurring in part, dissenting in part. I concur in much of the Court’s opinion. Specifically, I agree that a fit parent’s decision regarding his or her child’s visitation with a non-parent can be overridden only by evidence of demonstrable physical or psychological harm to the child. Unlike the majority, however, I believe that the movant must establish such harm by clear and convincing proof, not by a simple preponderance of the evidence. In that respect, I subscribe entirely to the view articulated by the American Civil Liberties Union in its amicus brief: The existence of demonstrable harm is a fact-intensive inquiry that of course should be performed by the trial court in the first instance. It may well embrace the concept of emotional injury that a child may suffer if a previously established positive relationship with a grandparent or sibling is suddenly severed. But because the court necessarily acts with less than complete knowledge and understanding of all the complex factors that are relevant in making this determination, and because special deference must be afforded to the wishes of the parent, an *123 additional procedural safeguard is needed to compensate for this inherent limitation in the judicial fact-finding process. A finding that harm exists should be proved not merely by a simple preponderance of the evidence standard, but by the enhanced “dear and convincing evidence” standard that applies when individual constitutional interests are at stake. [See, e.g.,] Santosky v. Kramer, 455 U.S. 745 [, 102 S.Ct. 1388 , 71 L.Ed.2d 599 ] (1982) (requiring clear and convincing evidence of neglect to terminate parental rights); V.C. v. M.J.B., 163 N.J. 200 , 748 A.2d 539 ], cert. denied, 531 U.S. 926 , 121 S.Ct. 302 , 148 L.Ed.2d 243 ] (2000) (requiring clear and convincing evidence of harm to deny psychological parent visitation). See generally, Anderson v. Liberty Lobby, Inc., 477 U.S. 242 [, 106 S.Ct. 2505 , 91 L.Ed.2d 202 ] (1986) (requiring clear and convincing evidence in establishing actual malice in libel case); E.B. v. Verniero, 119 F.3d [1077] (3d Cir.1997) (requiring clear and convincing evidence, rather than mere preponderance of evidence, of probability of reoffense in Megan’s Law notification in order to overcome due process and privacy interests of registrant)!, cert. denied sub nom., W.P. v. Verniero, 522 U.S. 1109 , 118 S.Ct. 1039 , 140 L.Ed.2d 105 (1998)]. In allegations of psychological harm, it is often easy, and perhaps too easy, to articulate a colorable claim of such harm and thereby undermine parental judgment. Thus, the “dear and convincing evidence” standard can be of very real assistance in mandating adherence to constitutional norms, particularly in cases such as this, where the “harm” that would allegedly result from curtailing, but not eliminating, visitation between the Bradts and them grandchildren has been colorably articulated, but perhaps not convincingly demonstrated. The Court appropriately models its approach on the standard articulated in our prior case, Watkins v. Nelson, 163 N.J. 235 , 748 A.2d 558 (2000). We were not required in Watkins to specify whether a clear and convincing showing of harm would be required in the present setting. We did, however, observe that “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.” Id. at 245 , 748 A.2d 558 (internal quotation marks and citation omitted). I construe that statement as being consistent with our imposing a clear and convincing burden of proof within the context of the current dispute. I do not wish to prolong this litigation any more than is necessary. Given the fundamental constitutional issues at stake, however, I see no choice but to direct a remand to the trial court for further proceedings. It would be best for the children, of course, if the parties were to resolve their differences amicably *124 and without further judicial involvement. Absent that resolution, which no longer appears possible, the trial court must intervene. It should do so only after permitting the parties to argue and submit additional evidence, if any, consistent with the elevated burden of proof to which I have adverted. If the movants succeed in satisfying that burden, then the trial court should approve a visitation schedule in the same manner set forth by the majority. To summarize: I do not condone plaintiffs reaction to the Bradts. As the trial court found, however, there is no allegation that plaintiff is an unfit parent. As a result, plaintiffs decision in respect of visitation should be immune from judicial intervention absent a showing by clear and convincing evidence of harm to the children. Accordingly, I would remand the matter to the trial court to determine whether that standard has been satisfied. Both children are now teenagers and soon will be of age to decide these issues for themselves. The process, however, is best served by the trial court ratifying, modifying, or rescinding its prior decision after it applies what I perceive to be the correct test. In all other respects, I agree with the Court’s opinion. For reversing and reinstating—Chief Justice PORITZ and Justices COLEMAN, LONG, LaVECCHIA, ZAZZALI, and ALBIN—6. Concurring in part dissenting in part—Justice VERNIERO— 1. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9691684. Public record. Not legal advice.