At common law, many years ago, grandparent visitation did not exist. Grandparents had no legal rights to request visitation time with their grandchildren. That was mainly because grandparents had much shorter life expectancies than they do today, and there was very little social science that focused beyond the core nuclear family. As grandparents began to live longer, and had more time to form significant relationships and bonds with their grandchildren, and the number of “broken” families began to increase, the law changed in response to the confirmed importance of the grandparent-grandchild relationship in a child’s life.
In 1972, New Jersey enacted the Grandparent Visitation Statute, N.J.S.A. 9:2-7.1., which has been amended over the years, to give grandparents and siblings the ability to seek visitation with a child. The statute currently reads:
1.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 childs 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 childs 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 childs best interest if the applicant had, in the past, been a full-time caretaker for the child.
While the statute is certainly a help to grandparents seeking visitation with a grandchild, it is still not an easy case when the child’s parent(s) object to visitation. This is because the Court has recognized that when a State (via the statute) seeks to interfere with a parent’s decision regarding their child, a fundamental right is at issue. Therefore, grandparent visitation should be granted only when there is a compelling State interest, which the New Jersey Supreme Court in Moriarty v. Bradt, 177 N.J. 84 (2003) has defined as “necessary to avoid harm to the child.” It is not the “best interests of the child” standard.
SO WHAT DOES THIS ALL MEAN??
While it is not an easy process to be awarded grandparent visitation with a grandchild if the parent(s) object, it is not impossible. It is extremely important that the grandparent(s) can prove, via evidence, that harm to the child will result if visitation is denied. While many might agree that, generally, it can be harmful to a child to lose contact with a loving grandparent, that general argument is not enough to meet the high standard defined in the Moriarty case. Grandparents must describe in explicit detail, and provide evidence of, a substantial past relationship with the child. Babysitting a few times here and there is not enough to meet this standard. It is also helpful to provide expert testimony that the denial of visitation would be harmful to the child. Each case is unique and will depend on its own circumstances.
If you are a grandparent and have had a substantial relationship with your grandchild, but are now being denied visitation, and would like to speak with a family law attorney about your case, contact The Law Office of Jill Jedrusiak, LLC today. Give us a call at (732) 719-2202 to set up an initial consultation. You can visit our website at www.jerseyfamilyattorney.com.