The benefits of a close bond between grandparents and grandchildren amount to far more than free babysitting. According to various studies:
- Grandparent involvement is strongly associated with reduced adjustment difficulties among adolescents from divorced or separated families;
- Kids with a strong sense of intergenerational identity have lower rates of anxiety and depression;
- Close ties with grandparents help children grow up with less ageism bias;
- Tight relationships with grandchildren help grandparents on average live five years longer.
Our Monmouth County grandparents’ rights lawyers know these are just a few reasons compelling pursuit of New Jersey grandparent visitation rights. Still, it’s important to understand the personal challenges and legal complexities these cases present – and why having an experienced family law attorney is essential.
Grandparent Visitation: Case Law History
Between 1966 and 1986, all 50 states enacted some form of law pertaining to grandparent visitation rights.
In New Jersey, NJ Rev. Stat. § 9:2-7.1 outlines visitation rights for grandparents and siblings. The law allows a grandparent or any sibling of a child residing in the state to make an application for an order of visitation.
The statute holds that the person filing the application must prove by a preponderance of the evidence that granting such visitation is in the best interests of the child.
Factors to be considered include:
- The grandparent’s relationship with the child;
- The relationship between each of the child’s parents with the grandparent applicant;
- Time elapsed since the grandparent last had contact with the child;
- Effect that visitation would have on the relationship between the child and their parent(s) and/or caregivers with whom they reside;
- The terms of the existing parenting time arrangement;
- Any history of abuse or neglect by the applicant grandparent;
- The good faith of the grandparent;
- Whether the grandparent was ever a full-time caretaker of the child;
- Any other factors relevant to the child’s best interests.
Then in 2000, the U.S. Supreme Court’s ruling in Troxel v. Granvilleinvalidated a grandparent and third-party visitation statute in Washington, deciding that the law was “breathtakingly broad” and violated the Constitutional rights of parents to raise their children as they see fit. States can only interfere with this right for the purpose of preventing harm or potential harm to the child – not simply by showing visitation serves the best interests of the child.
That led to a wave of litigation nationally to determine how one might prove the prevention of harm or potential harm in grandparent visitation cases.
The New Jersey Supreme Court addressed this issue for the first time in the 2003 case of Moriarty v. Brant. The court held that grandparents seeking visitation rights per NJ Rev. Stat. § 9:2-7.1 need to prove not only that visitation serves the best interest of the child but ALSO that denial of that visitation would result in harm to the child.
In other words, New Jersey’s grandparent visitation statute was not invalidated by the Troxel ruling, but rather augmented by additional requirements. Grandparents applying for visitation face a higher proof burden.
Grandparent visitation was again visited by the New Jersey Supreme Court in the 2016 case of Major v. Maguire. The court addressed the procedure for case management and determining whether a grandparent seeking visitation has made a prima facie showing of harm sufficient to withstand a parent’s motion to dismiss. The appellate court had affirmed dismissal of the grandparents’ visitation request, finding there wasn’t enough evidence to prove the child suffered harm by denying those visits. The New Jersey Supreme Court reversed, finding:
- Courts should encourage parties first and foremost to arbitrate these actions through alternative dispute resolution.
- Grandparents may file to have the matter designated as “complex” with relevant facts pertaining to how a child would suffer harm – and the nature of that harm – if visitation were denied.
- In grandparent visitation cases designated as complex, trial courts must hold initial and final case management conferences (otherwise, it can be handled as a less intensive summary action).
- If discovery is required, courts and both sides should work together to streamline the process, addressing only the issues in dispute: Whether the grandparent has met their burden to demonstrate harm to child absent visitation and if so, what visitation schedule will be in the best interests of the child.
- If expert testimony is required for a grandparent to meet their proof burden, trial courts are instructed to be sensitive to the impact of that involvement on family resources, the child’s privacy and the expert’s potential value.
- Trial courts should not prolong grandparent visitation litigation that is clearly meritless.
The bottom line is that while these are not easy cases to win, you are best served in your pursuit by working with a Monmouth County family law attorney who knows what they’re doing - and has a proven track record of success.
To learn more about New Jersey grandparent visitation rights, contact Rozin | Golinder Law today at (732) 810-0034.