Do Grandparents Have Rights?
My father thinks he has the right to give my children ice cream before lunch. My mother-in-law thinks she has the right to buy my children Sponge Bob videos against my wishes. Do these rights exist? What are my rights as a parent? What are their rights as grandparents? Do they have any? Parents have a fundamental right to make decisions regarding their children. If challenged, that fundamental right will not be overturned for ice cream or Sponge Bob.
What if the issues are more serious? What if my husband or I wanted to prevent our respective parents' access to our children? What if they smoke in front of our asthmatic children? What if they give our diabetic children donuts? What if they simply allow them to engage in behavior that I, as a parent, deem either dangerous or inappropriate? Do they have the right to do that? What are my rights as a parent to limit them?
As a parent, I have a fundamental right to determine what is in my child's best interest. In short, if I deem my parents' or my spouse's parents' behavior dangerous, or simply just inappropriate, I have the absolute right to prevent them from having access to my children. I have the absolute right to limit their time, activities and even their access.
Does there ever come a time when grandparents have rights? If at any time grandparents are denied visitation in the State of New Jersey, they have certain limited recourse. In 1993, N.J.S.A. 9:2-7.1 was amended giving grandparents the right to seek visitation if denied by the parent(s). Prior to its amendment N.J.S.A. 9:2-7.1 provided that grandparents had the right to make an application in the Supreme Court for grandparenting time only if it would be in the grandchild's best interest and one or both of the parents of the minor child was deceased or if the parents of the minor child were divorced or separated and the grandparent was denied access. In 1993, the statute was amended to provide grandparents the right to seek court ordered grandparental time provided first that they prove, by a preponderance of the evidence, that the grandparents' time is necessary to avoid harm to the child. The court, in making that determination, was required to consider eight (8) factors. They were as follows:
- The relationship between the child and the applicant;
- The relationship between each of the child's parents or the person with whom a child is residing and the applicant;
- The time which has elapsed since the child last had contact with the applicant;
- The effect that such parenting time will have on the relationship between the child and the child's parents or the person with whom the child is residing;
- If the parents are divorced or separated, the time sharing arrangements which exists between the parties with regard to the child;
- The good faith of the applicant in filing the application;
- Any history of physical, emotional or sexual abuse or neglect by the applicant; and
- Any other factor relevant to the best interests of the child.
Finally, it was considered prima facia evidence that the grandparenting time would be in the child's best interest if the grandparent had in the past been a full-time caretaker for the child.
What is a "preponderance of the evidence"? To prove preponderance of the evidence, the grandparents' argument must be more convincing than the parents' argument against them. So if my dad and I duke it out in court about his giving the kids ice cream once in a while before lunch, he might win; if, however, our kids were diabetic, perhaps not.
In 2003, the court created a procedure to be followed in every case where grandparents sought visitation with a grandchild. The grandparents must first establish by a preponderance of the evidence that visitation is necessary to avoid harm to the child. If grandparents are able to meet that burden, then the parents must offer a visitation schedule. If the grandparents reject the schedule, then the schedule proposed will be assessed to determine if it is in the child's best interest based on the statutory factors set forth in N.J.S.A. 9:2-7.1. If the visitation is not denied but the grandparents seek a different schedule, the grandparents are then required to show by a preponderance of the evidence that the proposed schedule is inadequate to avoid harm to the child. If the grandparents are able to meet that burden, the courts will then be required to develop a schedule that is in the best interest of the child based upon these statutory factors.
The courts will not ignore a parent's fundamental right to make decisions regarding the care, custody and control of their children lightly. If the parent proposes a schedule that the court considers reasonable that'll be that.
The determination is based upon harm to the child, not harm to the grandparents. How would a grandparent demonstrate harm to the child? Evidence of a significant relationship between the grandparent(s) and child and expert testimony showing the harm to the child if that relationship were terminated1 would be one example of demonstrating the harm to the child.
A parent's fundamental right to make decisions about their child will not be disregarded lightly. Grandparents seeking unwelcomed visitation have a difficult, but not insurmountable job.
1Rente v. Rente, 390 N.J. Super. 487, 915 A.2d 1099 (2007).
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