The New Jersey statutes allow both grandparents and siblings to seek visitation orders from a family court. This process allows family members to protect their right to visit minor grandchildren and siblings. Unfortunately, the process for obtaining such an order from the court is not as simple as citing the statutes. Extensive case law has created difficult legal hurdles for grandparents to overcome before they can seek a visitation order from a New Jersey court.
In 2000, the United States Supreme Court issued a rare family law case opinion in the matter of Troxel v. Granville, 530 U.S. 57. This case protected a parent’s right to choose whether to allow grandparent visitation. A Washington State grandparent visitation statute was noted by the Court for its “sweeping breadth”, and the opinion reaffirmed a presumption that fit parents act in the best interests of their children. Thus, a grandparent who wishes to visit a child in the custody of a fit parent must overcome this presumption.
This rare family law opinion from the Supreme Court created case law in state courts throughout the country. In New Jersey, many parents were able to use this presumption to dismiss grandparent visitation petitions without so much as a hearing or giving the grandparents an opportunity to fully present their case. This practice was stopped with an opinion from the Appellate Division of the New Jersey Superior Court in 2014 (R.K. and A.K. v. D.L., Jr., 434 N.J.Super. 113). Plaintiffs in this case, grandparents who had cared for their granddaughter during her mother and brother’s untimely deaths, petitioned for visitation with the child after it was denied by her father. Father responded with a motion to dismiss it entirely. The family court granted the motion to dismiss based upon the grandparents’ failure to provide expert testimony. The Appellate Division overruled the trial court, and noted the grandparents had been given neither an opportunity to present evidence nor engage in the discovery process to find evidence which should be presented.
What Does This Mean for New Jersey Grandparents?
These cases leave grandparents seeking visitation with a difficult - but not insurmountable - challenge. They have the right to engage in discovery and present their evidence to the court, but the case must be strong enough to overcome the presumption that a fit parent will act in the best interest of his or her child. Moreover, the R.K v. D.L. opinion reaffirmed yet another difficult standard set in prior New Jersey case law. A grandparent cannot simply establish that visitation is in the child’s best interest. The grandparent must also affirmatively prove that harm will result unless the visitation is awarded.
For New Jersey grandparents seeking visitation with a grandchild, preparation is critical to establishing a tenable case. A Freehold grandparents rights attorney can help grandparents document their relationship with the grandchild, demonstrate its importance to the child, use expert witnesses to prove that harm can occur to the child without grandparent visitation, and otherwise strengthen the case for visitation before a petition is ever filed. These critical steps can help grandparents enforce their right to visitation with their grandchildren.
If you are a grandparent who is being denied your right to visit your grandchildren, contact the Freehold child custody attorneys at Rozin-Golinder Law LLC by calling (732) 810-0034.
Additional Resources: R.K. and A.K. v. D.L., Jr., 434 N.J.Super. 11, Appellate Division (2014).
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