Family Matters

Grandparent Visitation in New Jersey

They say it takes a village to raise a child – and that is often what occurs. Perhaps your village includes a friend, partner or stepparent, aunts or uncles, adult siblings of the child, or grandparents. However, what happens when your village falls apart? Parents have a fundamental right to raise their children as they see fit. This fundamental right includes choosing who spends time with the child, when and where, for how long, and under what conditions. In the United States, the rights of parents to the care and custody of their children are robust but not absolute. For example, child protective services may intervene in cases of abuse or neglect, putting restrictions on a parent’s time or removing their care altogether. If you are a sibling or grandparent that has been involved in a child’s life and the child’s parent is not permitting you to spend time with them, or if you are a parent concerned about your child’s grandparents and their rights to visitation, this blog post will explain what recourse is available to you through the Court.

Under the Grandparent Visitation Statute, as currently written, a grandparent or any sibling of a child may make application before the Superior Court for an order for visitation. The statute provides it is 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. However, this relatively low standard has since been narrowed by both the United States Supreme Court and the New Jersey Supreme Court.

In 2000, the United States Supreme Court addressed the constitutionality of a Washington State nonparental visitation statute. Troxel v. Granville, 530 U.S. 57 (2000). The Court held that the Washington statute impermissibly intruded on the mother’s rights in that case. The Court found the statute impermissibly overbroad because it permitted any person to petition for visitation and permitted a court to decide that visitation was in a child’s best interest.

Thereafter, in 2003, the Supreme Court of New Jersey decided Moriarity v. Bradt, 177 N.J. 84 (2003) which narrowed New Jersey’s statute in light of the Troxel decision. The first step for the Court to even consider visitation, the grandparent must establish by a preponderance of the evidence that visitation is necessary to avoid harm to the child. Avoidance of harm is a significantly higher burden than the child’s best interests. While, generally, most people acknowledge it may be beneficial for a child to have contact with a grandparent absent concerns about the grandparent, showing it is necessary to avoid harm requires significant factual evidence and perhaps even a psychological assessment of the child. Cases where a Court has found this standard met are often those where a parent passed away and a relationship with the grandparent will assist that child in processing their parent’s death and maintain relationships with that side of the family.

If the grandparent meets this burden, then the parent must propose a visitation schedule. If the grandparent does not accept the proposed schedule, then the Court will determine whether the schedule is in the child’s best interests based upon the statutory factors set forth in the Grandparent Visitation Statute.  These factors address the relationship between the child and grandparent, relationship between the child and their parents, the time which elapsed since contact, effect the visitation will have on the child and their parents, and more. If visitation is not denied outright, but the grandparents object to the sufficiency of the proposed schedule, the grandparent must show by a preponderance of the evidence that the proposed schedule is inadequate to avoid harm to the child. If the grandparent meets this burden, the Court will then be required to develop a schedule that is in the child’s best interest based upon the statutory factors.

If you are a parent, grandparent, or sibling and have questions about sibling and grandparent visitation, our team of attorneys is available to schedule a consultation to discuss the specifics of your case and to help you every step of the way.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.