Grandparent visitation is something that is usually sought when, for any number of reasons, a parent or parents decide to limit grandparents contact with their grandchild. Filing a motion for visitation can be a scary proposition for anyone, but the New Jersey grandparent visitation statute is fairly clear when it comes to what’s required to gain visitation rights.
Parents have a substantive due process right, under the Fourteenth Amendment, to “raise their children without undue state interference.” Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000). In fact, the “interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests,” Troxel v. Granville, 530 U.S. 57, 65 (2000). In Troxel, the United States Supreme Court addressed a challenge to the constitutionality of a Washington state statute which authorized “any person” at “any time” to petition a court for visitation rights when such visitation would “serve the best interest of the child.” 530 U.S. at 60. The United States Supreme Court held that the statute was unconstitutional as applied because it violated the mother’s substantive due process rights and that the parent’s determination whether to permit visitation with a grandparent is entitled to “special weight.”. Id. at 72. The United States Supreme Court took a hands-off approach to grandparent visitation and New Jersey followed its lead.
In New Jersey, N.J.S.A. 9:2-7.1 governs both grandparent and sibling visitation. N.J.S.A. 9:2-7.1 provides that:
a. A grandparent or any sibling of a child residing in this State may make application before the Superior Court, in accordance with the Rules of Court, for an order for visitation. It shall be the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best interests of the child.
b. In making a determination on an application filed pursuant to this section, the court shall consider the following factors:
(1) The relationship between the child and the applicant;
(2) The relationship between each of the child’s parents or the person with whom the child is residing and the applicant;
(3) The time which has elapsed since the child last had contact with the applicant;
(4) The effect that such visitation will have on the relationship between the child and the child’s parents or the person with whom the child is residing;
(5) If the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;
(6) The good faith of the applicant in filing the application;
(7) Any history of physical, emotional or sexual abuse or neglect by the applicant; and
(8) Any other factor relevant to the best interests of the child.
c. With regard to any application made pursuant to this section, it shall be prima facie evidence that visitation is in the child’s best interest if the applicant had, in the past, been a full-time caretaker for the child.
The New Jersey Supreme Court has reasoned that the statute was subject to our strictest form of review because an order compelling grandparent visitation infringes on a parent’s fundamental right to raise their children as they see fit. Case law has provided a framework for a situation where a child’s parent or parents object to visitation, in which the grandparent seeking visitation bears the burden of establishing by a preponderance of the evidence that visitation is necessary to avoid harm to the child. What that means is that the grandparent must show that it is more likely than not, that a particular, identifiable, child-specific harm will come to the child or children if visitation is not permitted. A grandparent seeking visitation can utilize expert evidence, such as the testimony of a therapist, counselor or physician, or factual evidence to show the potential for or realized harm to their grandchild.
Should the Court find that a showing of harm has been made, the presumption in favor of parental decision-making will be deemed overcome and the parent must offer a visitation schedule. If the grandparents agree with the proffered schedule that would end the discussion and a Court order would memorialize the schedule. However, if the grandparents are not satisfied, the schedule will be carefully assessed by the Court, who will then consider the child’s best interest based on the above listed factors and determine a visitation schedule.
While the Courts have not disregarded the value of a loving grandchild-grandparent relationship, they have concluded that the “harm” that will befall the child in the absence of visitation, must be something more substantial, such as the death of a parent or the break-up of the child’s home following a divorce or separation of their parents. The Court will decline to intervene when a grandparent files their motion for visitation using conclusory, generic terms, such as the potential loss of happy memories. It is important when seeking grandparent visitation that the harm elucidated is based on the needs, circumstances and issues surrounding the particular child with whom visitation is sought.
The New Jersey Supreme Court has promulgated a clear standard when it comes to grandparent visitation: parents and grandparents do not stand as equals in this arena. Grandparents seeking visitation need to be able to demonstrate a “special” relationship that could not be obtained by the child elsewhere, not just a loving relationship. Parental autonomy will not be disturbed unless it can be shown that cognizable harm to the health and welfare of a child will result in the absence of grandparent visitation.
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