What is Harm To The Child?

By Charles F. Vuotto, Jr., Esq. (Editor-in-Chief)

Harm to the child. An easy enough legal standard, right? Perhaps not. Although our case law is riddled with this critical standard for judicial review in a myriad of situations, there is minimal instruction from our courts as to how the standard of “harm to the child” is met, nor is there any solid definition of the term. This author asks one question: what constitutes harm to a child in the context of family law?

In order to find the answer (if such an answer exists), there must be an analysis of those key areas of family law that apply the standard. What cases address harm to the child as the critical standard? Do these cases offer any guidance for the practitioner when attempting to demonstrate, or defend against, a showing of harm to the child?

Apparently, this standard is found more than one would expect. Of course, we are all aware of the standard created by Fawzy[i]governing arbitration of custody and parenting time issues. The harm to the child standard is also applied to a parent’s right to custody,[ii] a non-custodial parent’s right to have a relationship with her child,[iii] interference with parental autonomy,[iv] the doctrine of parens patraie,[v] and termination of parental rights.[vi]Harm to the child is the critical element of a parent’s request for removal.[vii] The standard is further applied when addressing issues of third-party rights to custody and visitation, including grandparent rights,[viii] and when defining the concept of a psychological parent.[ix]   The right of a parent who has committed domestic violence to parenting time is governed by the harm to the child standard,[x] as is the right of a parent to record his child’s conversation by way of vicarious consent.[xi]Civil commitment of a minor is governed by the harm standard,[xii] as are DYFS findings and definitions of abuse and neglect.[xiii]

With so much law focusing on the harm to the child standard, one would think that a clear definition must be found in statute or case law. Unfortunately, that is not the case. Not only is no definition provided by our courts, but there is little guidance on an appropriate interpretation of the standard.In terms of the guidance provided, the law is clear that the harm to the child standard is a “significantly higher burden than a best-interests analysis.”[xiv] In the context of termination of parental rights, “[t]he harm shown… must be one that threatens the child’s health and will likely have continuing deleterious effects on the child.”[xv]

When will the courts make a finding of harm to the child? We only find limited examples of what is or is not harm to the child. For example, the Supreme Court in Fawzywas clear that such a finding will not be found in cases involving “two fit parents” where one argues he or she is the “better” parent, or argues that there is not sufficient summer vacation parenting time. Disputes concerning “parenting style, not capacity” will also not rise to the level of threatening harm to the child.[xvi] However, such a finding of harm may be made where “the arbitrator granted custody to a parent with serious substance abuse issues or a debilitating mental illness…”.[xvii]As to grandparent visitation, a father’s alienation of his children from theirmaternal grandparents, coupled with the close relationship betweenthe children and the maternal grandparents, has been found sufficient to demonstrate harm to the child in the absence of grandparent visitation.[xviii]Also, where there is an “objectively reasonable belief that [children are] being threatened, intimidated, and verbally abused by [a parent],” or where a parent is “trying to undermine [the other parent’s] relationship” with her children, there may be a finding of harm to the child.[xix].

In the context of removal, the courts have provided twelve factors to be considered,[xx] although specific application of these factors to a finding of harm is sparse among published cases. From what the removal cases provide, examples of harm to the child may be demonstrated where “the move will take the child away from a large extended family that is a mainstay in the child’s life,” or where the “educational, vocational or health care available in the new location are inadequate for the child’s particular needs,” or where “neither [the non-custodial parent’s] relocation nor reasonable visitation is possible, and that those circumstances will cause the child to suffer.”[xxi]In addition, the requisite demonstration of harm in the removal context may be determined where the “child has an emotional disorder and the noncustodial parent has provided a needed safety net, the impact of a move, with concomitant irregularity in visitation, might well cause the child to suffer,” or where “the proofs [] reveal that because of the child’s developmental disorder, a change in visitation will be harmful.”[xxii] In addition, “if the child has a particular talent or skill, a noncustodial parent who has driven him or her to early and late practices, assisted the teacher or coach, organized road trips, attended competitions, and is the constant support in the child’s dedication to the talent, can advance a persuasive argument that the inability to fulfill that role and pursue that connection with the child will be the kind of harm that should tip the scales against removal.”[xxiii]

Perhaps the most concrete guidance is provided in the context of abuse and neglect cases, where the definition of an “abused or neglected child” is statutorily defined as “a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care… in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment.”[xxiv]As set forth above, case law concerning termination of parental rights further provides that sufficient harm to the child “must be one that threatens the child’s health and will likely have continuing deleterious effects on the child.”[xxv]However, even these explanations fail to fully explore the parameters of “harm,” and fail to address whether the “harm” described therein is specific to abuse and neglect cases.

Although this column is not intended to provide an exhaustive analysis of the “harm to the child” standard in the context of family law, it is intended to draw the practitioner’s attention to the disproportionate amount of weight placed on the standard in contrast to the limited guidance provided by our courts and legislature. The questions still remain. What definitively constitutes harm to the child? Where is the line between “not in a child’s best interests” and “harm to the child”? Does the “harm to the child” standard require the same demonstration (whatever that demonstration may be) irrespective of what specific family law issue is being addressed by the court? In other words, does “harm to the child” have the same definition no matter what the context? For example, is the standard different when addressing the review of a custody arbitration as opposed to a grandparent visitation case or the right of a parent to vicariously record his or her child’s conversation? In order for there to be definitive answers to these questions, two things must occur: (1) the courts and/or legislature must provide more definitive guidance; and (2) family law practitioners must help shape such guidance by exploring the definition of “harm to the child” when presenting matters to the court.

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Special thanks to Lisa Steirman Harvey, Esq. who contributed significantly to this column.

[i]Fawzy v. Fawzy, 199 N.J.456, 461-62 (2009) (“The only exception [to review in accordance with the Arbitration Act] is the case in which a party establishes that the arbitrator’s award threatens harm to the child.”)

[ii]Watkins v. Nelson, 163 N.J. 235, 246-47) (2000) (“The principle that a showing of gross misconduct, unfitness, neglect, or “exceptional circumstances” affecting the welfare of the child will overcome this presumption, is a recognition that a parent’s right to custody is not absolute. That parental right must, at times, give way to the State’s parens patriae obligation to ensure that children will be properly protected from serious physical or psychological harm.”)
[iii]Wilke v. Culp , 196 N.J. Super. 487, 496 (App. Div. 1984) (“Nevertheless, a parent’s custody and visitation rights may be restricted, or even terminated, where the relation of one parent (or even both) with the child cause emotional or physicalharm to the child, or where the parent is shown to be unfit…”)

[iv]In re D.C., 203 N.J. 545, 573 (2010) (“The foregoing authority, including W.P., constitutes a seamless expression of the principle that the application of the best interests standard to a third party’s petition for visitation is an affront to the family’s right to privacy and autonomy and that interference with a biological or adoptive family’s decision-making can only be justified on the basis of the exercise of our parens patriae jurisdiction to avoid harm to the child.” )

[v]Segal v. Lynch, 413 N.J. Super. 171, 178 (App. Div. 2010) (“Our overarching consideration in all matters concerning children involved in the judicial system is “the best interests of the child.” This principle is embedded in the doctrine of parenspatriae, which authorizes the court to intervene when necessary to prevent harm to the child.”)

[vi]In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999) (“The harm shown under the first prong [of the test for termination of parental rights] must be one that threatens the child’s health and will likely have continuing deleterious effects on the child.”)

[vii]Baures v. Lewis, 167 N.J. 91, 118 (2001)(“In terms of the burden of going forward, the party seeking to move, who has had an opportunity to contemplate the issues, should initially produce evidence to establish prima facie that (1) there is a good faith reason for the move and (2) that the move will not be inimical to the child’s interests. Included within that prima facie case should be a visitation proposal.”)

[viii]Moriarty v. Bradt, 177 N.J. 84, 88 (2003) (“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.”)

[ix]V.C. v. M.G.B., 163 N.J. 200, 229 (2000) (Psychological parent is entitled to visitation with the child unless such visitation will result in “physical or emotional harm to the children”.)

[x]N.J.S.A. 2C:25-29(b)(3)(a) (“The court shall consider a request by a custodial parent who has been subjected to domestic violence by a person with parenting time rights to a child in the parent’s custody for an investigation or evaluation by the appropriate agency to assess the risk of harm to the child prior to the entry of a parenting time order”.)

[xi]D’Onofrio v. D’Onofrio, 344 N.J.Super. 147, 157 (A.D.2001) (“Under the circumstances, where there is clear evidence of harm to the children, a residential custodial parent’s recording in his or her own home of conversations between a minor child and a non-resident parent is permissible under New Jersey’s Wiretap Act pursuant to the vicarious consent exemption.”); see also Cacciarelli v. Boniface, 325 N.J. Super. 1333 (Ch. Div. 1999).

[xii]4:74-7A(a)(3) (“With respect to a minor under 14 years of age, dangerous to self shall also mean that there is a substantial likelihood that the failure to provide immediate, intensive, institutional, psychiatric therapy will create in the reasonably foreseeable future a genuine risk of irreversible or significant harm to the child arising from the interference with or arrest of the child’s growth and development and, ultimately, the child’s capacity to adapt and socialize as an adult.”)

[xiii]N.J.S.A. 9:6-1 (“Neglect also means the continued inappropriate placement of a child in an institution…with the knowledge that the placement has resulted and may continue to result in harm to the child’s mental or physical well-being; 9:6-8.9(f) ( “Abused child” means…(f)… a child who is in an institution…and (1) has been so placed inappropriately for a continued period of time with the knowledge that the placement has resulted and may continue to result in harm to the child’s mental or physical well-being; 9:6-8.21(c)(4)(b).(“Abused or neglected child” means…. “a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care… in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment”); G.S. v. Department of Human Services, Div. of Youth and Family Services, 157 N.J. 161 (1999) (“Viewing the practical implications of our decision in light of the purposes of Title 9 lends support to our conclusion that the proper focus of an inquiry under N.J.S.A. 9:6-8.21 is on the harm to the child.”)
[xiv]Fawzy 199 N.J. at 462 (“The threat of harm is a significantly higher burden than a best-interests analysis.”)

[xv]In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999) (see also New Jersey Div. of Youth and Family Services v. F.H., 389 N.J.Super. 576, 914 A.2d 318 (A.D.2007), certification denied 192 N.J. 68 (2007).

[xvi]Johnson v. Johnson, 204 N.J. 529, 548 (2010) (“The issue was always parenting style, not capacity, and the arbitrator’s commission was to create a schedule that would minimize conflicts and problems in the face of such different parenting styles. His new schedule was nothing more than a tweaking of an agreed-upon parenting time schedule to minimize disruption for the children. Simply put, that does not begin to approach a showing of harm sufficient to warrant judicial inquiry beyond what is provided in the APDRA.”)

[xvii]Fawzy, 199 N.J. at 462

[xviii]Moriarty, 177 N.J. at 122. Supreme Court affirming trial court and reversing appellate court, by confirming trial court’s finding, that due to mother’s death and special closeness between children and grandparent, visitation was needed to prevent harm to the children in light of the father’s campaign of alienation of the children from their deceased mother and grandparents.

[xix]D’Onofrio, 344 N.J. Super. at 157.

[xx]Baures, 167 N.J. at 116-17 (“With those principles in mind, in assessing whether to order removal, the court should look to the following factors relevant to the plaintiff’s burden of proving good faith and that the move will not be inimical to the child’s interest: (1) the reasons given for the move; (2) the reasons given for the opposition; (3) the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move; (4) whether the child will receive educational, health and leisure opportunities at least equal to what is available here; (5) any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location; (6) whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child; (7) the likelihood that the custodial parent will continue to foster the child’s relationship with the noncustodial parent if the move is allowed; (8) the effect of the move on extended family relationships here and in the new location; (9) if the child is of age, his or her preference; (10) whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent; (11) whether the noncustodial parent has the ability to relocate; and (12) any other factor bearing on the child’s interest.”

[xxi]Baures, 167 N.J. at 119.

[xxii]Id.

[xxiii]Id.

[xxiv] 9:6-8.21(c)(4)(b).

[xxv]In re Guardianship of K.H.O., 161 N.J.at 352 (1999).