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In a blow to plaintiffs in suits under New Jersey’s Grandparent Visitation Statute, a state appeals court ruled Friday that such litigation can be so burdensome as to infringe on a fit parent’s constitutional rights to due process. The three-judge panel stopped short of declaring the state statute facially unconstitutional. But in dismissing a Cranford, N.J., grandfather’s suit to visit his two grandchildren, the court said the statute, N.J.S.A. 9:2-7.1, was unconstitutional as applied. Harry and Joan Wilde v. Tracy Wilde, A-618-00T5. In this case, instead of patiently trying to work out a visitation regime, the grandfather filed a suit in which his daughter-in-law was forced to defend herself, potentially at considerable expense, the appeals judges said. “Because the litigation itself ‘implicates’ the parent’s constitutional rights, a grandparent’s statutory right to hale a parent into court must be carefully circumscribed, particularly where, as here, the parent’s fitness is not disputed,” Judge Donald Coburn wrote, joined by Judges Michael King and Francine Axelrad. Alan Zegas, who represented the successful parent, says the case is important because “it sets a standard that must be met before a grandparent can require the parent of the grandchildren to come to court.” “It imposes upon grandparents an obligation to make substantive efforts to restore good will between the parties before coming into court,” says Zegas, who heads a firm in Chatham, N.J. The case also is important because it is the first appellate review of the New Jersey statute since Troxel v. Granville, 530 U.S. 57 (2000), the U.S. Supreme Court’s ruling that a grandparent visitation statute in Washington violated parental rights. New Jersey’s law is different from Washington’s statute, which the U.S. Supreme Court said was too sweeping an infringement on parental rights. New Jersey’s law, as interpreted by the state supreme court, requires trial judges to apply an eight-prong test that, in effect, balances the rights of fit parents and grandparents while upholding the primary principle that the best interests of the child prevail. While rejecting Zegas’ argument that New Jersey’s statute also was facially unconstitutional, the appeals court seized on language in Troxel to trumpet the right of parents to care for their children without the threat of litigation. Quoting from Troxel, Coburn wrote, ” ‘A domestic relations proceeding in and of itself can constitute state intervention that is so disruptive of the parent-child relationship that the constitutional right of a parent to make certain basic determinations for the child’s welfare is implicated. If a single parent who is struggling to raise a child is faced with visitation demands from a third party, the attorney’s fees alone might destroy her hopes and plans for the child’s future.’ “ The appeals court underscored that concern by ordering the trial judge in the case, Union County Superior Court Judge Kathryn Brock, to award fees to the parent. Zegas says the appeals judges made that ruling sua sponte and he doesn’t know how much he will seek. At issue in the case was whether Harry Wilde and his second wife, Joan, could visit his grandchildren over the objections of their daughter-in-law Tracy Wilde. After Russell Wilde — her husband and Harry’s son — committed suicide in 1999, Tracy was cool to the grandparental visits and rejected some of the requests to see the children, now 6 and 8 years old. In the pleadings, Harry Wilde included a certification that attacked his daughter-in-law’s spending habits, accused her of perjury and alleged she tried to destroy his relationship with his grandchildren. Brock, distinguishing between the New Jersey law and Troxel, applied the eight-prong test and ruled in the grandparent’s favor. She also ordered all three Wildes to undergo therapeutic mediation by a psychiatrist. In overturning both rulings, the appeals judges noted that the suit was filed only five months after Russell Wilde’s suicide. “Before engaging the courts, grandparents should be obliged to make substantial efforts at repairing the breach, and, in addition, litigation ordinarily should not be threatened before visitation has been denied with finality.” The panel also said that restricting such suits “will enhance the Legislature’s policy of encouraging contact between children and grandparents by avoiding precipitous and acrimonious resort to the courts.” The grandparent’s lawyer, Neil Braun, of Short Hill, N.J.’s Donahue, Braun, Hagen, Klein & Newsome, did not return a call on Friday.

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