A warm, loving relationship between a grandparent and a grandchild may result in a bond with a significant, positive impact on a child’s life. Most children may benefit from a loving relationship with their grandparents. But in the last several years, it has become more difficult for a grandparent to obtain visitation rights when one or both of the child’s biological parents have said “No.” Given the current state of the law, it is important to understand the legal rights of grandparents, the facts that one must establish, and the factors a court will consider in a dispute on grandparent visitation rights.
A grandparent or any sibling of a child residing in New Jersey may apply for an Order for visitation before the Superior Court in accordance with the Rules of Court. It shall be the applicant’s burden to prove that the granting of visitation is in the best interest of the child.
In making a decision, the court shall consider:
the relationship between the child and the applicant
the relationship between each of the child’s parents or guardian and the applicant
the time that has elapsed since the child’s last contact with the applicant
the effect that such visitation will have on the relationship between the child and the child’s parents or the guardian
if the parents are divorced or separated, the time-sharing arrangement which exists between the parents
the good faith of the applicant in filing the application
any history of physical, emotional or sexual abuse, or neglect by the applicant
any other factor relevant to the child’s best interests.
It shall be prima facie evidence that visitation is in the best interests of the child if the applicant has been a full-time caretaker for the child in the past.
Under current New Jersey law, the grandparent has the burden to prove that denial of grandparent visitation would cause harm to the children. First, the grandparent must establish that visitation is necessary to avoid harm to the child. If the grandparent meets this burden, then the parent must propose a visitation schedule. If the grandparent does not accept the proposed schedule, the court will determine whether the schedule is in the child’s best interests. If visitation is not denied outright, but the grandparents object to the sufficiency of the proposed schedule, the grandparent must show that the proposed schedule is inadequate to avoid harm to the child. If the grandparent meets this burden, the court must develop a schedule that’s in the child’s best interests based on the statutory factors.
New Jersey has long recognized that the best-interest standard is inapplicable when a fit parent is in a struggle for custody with a third party. A dispute between a fit custodial parent and a child’s grandparent is not a contest between equals. A court does not have sufficient justification to infringe upon a parent’s fundamental due process right to raise their children as they see fit. Interference with parental autonomy will be tolerated only to avoid harm to the health and welfare of a child.
Grandparents who pursue visitation should understand that bald assertions or mere conclusions are not enough to establish harm. In other words, “loss of potentially happy memories” will not justify intruding into a parent’s decision-making authority. A grandparent must identify a specific harm that would come to the child if visitation were denied. Grandparents seeking visitation should establish a significant pre-existing relationship between the grandparent and the grandchild, that there are significant emotional ties between them, and that the child would suffer specific psychological harm from the absence of visitation. Grandparents seeking visitation would benefit from an expert’s report to support their claims.
Although most people presume that a beneficial relationship exists between grandparents and grandchildren, not all such relationships are beneficial. Parents have a constitutional right to make decisions concerning their children without interference from grandparents or the state.
We want to thank the lawyers in the matrimonial department of Einhorn, Harris, Ascher, Barbarito & Frost, P.C. in Denville, NJ, for providing answers to frequently asked divorce questions, including this one. To reach a lawyer at the firm call (973) 627-7300. View the firm profile here: Divorce Magazine profile.