Disagreements between parents and grandparents about how to raise children are common. Many parents appreciate and trust the wisdom and experience of their own parents. Others accuse grandparents of “spoiling” the children, by allowing treats or behavior that conflict with the parents’ own values. In either case, parents have no legal obligation to defer to grandparents. When push comes to shove, the law gives parents the final word.
While minor disputes between parents and grandparents are common, most parents would not dream of depriving their children of a close relationship with their grandparents. In rare cases, however, the issues become more serious. A parent who is concerned that a grandparent’s conduct poses a serious risk of harm to a child may try to restrict the grandparent’s contact with the child. The question then arises, do grandparents have any legal right to visitation?
New Jersey Grandparent and Sibling Visitation Statute
New Jersey has a statute that specifically addresses the visitation rights of grandparents and siblings. Cases under the statute most frequently involve grandparents, rather than siblings, and especially grandparents-in-law. Power struggles sometimes arise between a parent and a grandparent-in-law when the other parent has either passed away or lost custody due to unfitness.
The New Jersey statute states that a grandparent or sibling residing in New Jersey can obtain a visitation order by proving that the visitation is in the best interests of the child, based on the following factors:
- the relationship between the child and the applicant,
- the relationship between each of the child’s parents, or the person the child is living with, and the applicant,
- the amount of time which has passed since the child last had contact with the applicant,
- the effect that the visitation would have on the relationship between the child and the child’s parents or the person the child is living with,
- if the parents are divorced or separated, the parenting time arrangement 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, and
- any other factor relevant to the child’s best interests.
The statute also states that if an applicant has been a full-time caretaker of a child in the past, this will be sufficient evidence that visitation would be in a child’s best interests, unless there is also evidence to the contrary. (N.J.S.A. 9:2-7.1)
Constitutional Limitations on Third-Party Visitation
Although the statute gives grandparents and siblings a basis on which to seek visitation, the right is more limited than the language implies. In the United States Supreme Court case of Troxel v. Granville, 530 U.S. 57 (2000), the Court, addressing a Washington State third-party visitation statute, determined that a “best interests” test was not enough to overcome a parent’s constitutional right to decide how to raise a child. Prior to the Troxel decision, New Jersey courts interpreted N.J.S.A 9:2-7.1 as requiring grandparents or siblings applying for visitation rights over the objections of a fit parent to show only that the visitation would be in the child’s best interests. Since Troxel, however, such applicants must first show that the visitation is necessary to avoid harm to the child.
New Jersey Court Procedures in Grandparent Visitation Cases
In 2003, in the case of Moriarty v. Brandt (177 N.J. 84 2003), the New Jersey Supreme Court created a procedure to be followed in every case where grandparents sought visitation with a grandchild over the objections of a fit legal parent. The grandparents must first establish by a preponderance of the evidence that visitation is necessary to avoid harm to the child. The requirement of a “preponderance” means that the grandparents’ argument that the loss of visitation will harm children must be more convincing than the parents’ argument to the contrary.
If a court decides that a grandparent has demonstrated that denying visitation would harm the grandchild, then the parent must propose a schedule. If the grandparent claims that the schedule is structurally inadequate or unworkable, the court will decide whether or not it meets the child’s best interests according to the factors listed in the visitation statute. A claim that the schedule provides the child with insufficient time with the grandparent would still require proof that the inadequacy is likely to cause harm to the child. In either case, a court agreeing with the claim of inadequacy must develop a new visitation schedule that meets the child’s best interests based on the statutory factors.
Demonstrating Harm from Denial of Grandparent Visitation
A grandparent attempting to show that denying visitation would harm a child must first establish the significance and closeness of the current relationship between the grandparent and the child. An expert opinion may then be necessary to show that the loss of the relationship would emotionally damage the child. The evidence must demonstrate specific ways that the child would suffer. Vague statements that the child will lose loving interactions or happy memories will not generally be enough.
New Jersey’s grandparent and sibling visitation statute represents an effort to accommodate two competing interests that are both important. The courts and the legislature recognize that in most cases grandparents and siblings have special relationships with children that are worthy of protection. The United States Supreme Court, however, has afforded constitutional protection only to legal parents.
Whether you are a grandparent seeking time with your grandchildren, or a parent having issues with a grandparent’s behavior, we can help. To speak with one of our knowledgeable and compassionate family law attorneys, please contact us to schedule your free confidential consultation. Call us today: (888) 888-0919.