In a society increasingly moving away from the nuclear family, Grandparents are closer than ever with their Grandchildren. Grandparents are frequently taking on parental roles or acting as part time care givers where a child’s parents are separated or absent. What can you do if the parents of your grandchild refuse to allow you to see them?
Grandparent’s rights to visitation with their grandchildren are governed by statue in New Jersey. The statute seeks to balance the competing interests of grandparents, grandchildren, and parents. The statute gives grandparents right to petition for visitation, but does not make visitation automatic. The United States Supreme court has spoken on the issue of Grandparent visitation. In the Troxel case, decided in 2000, the Court stated that parents have a constitutional right to raise their children and that litigation brought by grandparents against a fit, natural parent was in and of itself a burden on the parent’s substantive due process rights. Troxel v. Granville, 530 U.S. 57 (2000). Therefore, in New Jersey, when an application is brought for visitation by a child’s grandparents, the Supreme Court of New Jersey has held that the grandparent-applicant must first establish, by a preponderance of the evidence, that visitation is necessary to avoid harm to the child. The evidence may be factual or an expert may be employed. Moriarty v. Brandt, 177 N.J. 84, 117 (2003). Further, the grandparent seeking visitation must show an “identifiable harm, specific to the child,” generic claims such as the “loss of potentially happy memories” are insufficient to demonstrate harm. Mizrahi v. Cannon, 375 N.J. Super. 221, 234 (App. Div. 2005). Pursuant to the statute if a grandparent had, in the past, been a full-time caretaker for the child the court shall automatically draw an inference that an absence of visitation will harm the child and that visitation is in the child’s best interest. N.J.S.A. § 9:2-7.1 (c).
The court, in making a determination on grandparent visitation must consider the following factors as stated in the statute:
1. The relationship between the child and the applicant;
2. The relationship between each of the child’s 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 child’s 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.
Once the court has determined that the grandparent has established harm to the child in the absence or restriction of visitation, “the presumption in favor of parental decision-making will be overcome,” and the parent must propose a visitation schedule which the Grandparent may then accept or reject. If the grandparent rejects the proposed visitation the Court will then determine what schedule would be in the best interest of the child, using the above enumerated factors. Moriarty at 118.