Reviewed by Laurie L. Newmark, ESQ.
Key Takeaways
- New Jersey grandparent visitation is not decided by a simple best-interests test.
- Under N.J.S.A. 9:2-7.1, a grandparent must first prove that the child would be harmed without visitation.
- Only then does the court weigh the best-interests factors.
Often, child custody situations affect entire families. This tends to include grandparents. If a grandparent worries that they will not be able to spend as much time with their grandchild, they may need to request a visitation order. It is important to remember that you do have rights as a grandparent. In New Jersey, grandparents have the right to petition for visitation in accordance with N.J.S.A. 9:2-7.1, but the standard is demanding. Parents have a constitutional right to raise their children, and grandparents must prove, beyond a preponderance of the evidence, that the denial of visitation would cause harm to the child. Only once harm has been established will the court consider the statutory best interest factors. In order to obtain visitation rights, you should reach out to a dedicated family law attorney. Read on to learn more about grandparents’ rights in New Jersey.
Who Can Request a Visitation Order?
It is important to note that when it comes to requesting a visitation order, only certain family members may do so. These family members include parents, grandparents, and siblings. Other family members, including stepparents, aunts, uncles, and cousins, are not able to request visitation, regardless of how close they are to the child. If you have any questions regarding your eligibility to request visitation rights in New Jersey, contact our firm to discuss your case.
The Legal Standard: Grandparents Must Show Harm
It’s important to understand that, in New Jersey, grandparent visitation is not decided by the “best interest of the child” standard. While that was the rule at one point, it has changed.
In Troxel v. Granville, 530 U.S. 57 (2000), the United States Supreme Court held that parents have a fundamental constitutional right to make decisions about raising their children, including who spends time with them. Applying that principle, the New Jersey Supreme Court in Moriarty v. Bradt, 177 N.J. 84 (2003), held that requiring visitation based only on the child’s best interests would unconstitutionally interfere with a fit parent’s rights.
Under N.J.S.A. 9:2-7.1, a grandparent seeking visitation over the objections of a fit parent must first prove, by a preponderance of the evidence, that the child would suffer harm if they are not permitted to have visitation. The harm must be specific and unique to that child. General claims, including the loss of a potentially loving relationship or joyful memories, are not enough to overturn these principles. Grandparents who were once a full-time caretaker for the child are given an inference that the loss of visitation would cause harm.
In the event the grandparents clear the harm threshold, the presumption that the parents will make the best decision falls away. At this point, the court will consider the statutory factors to establish a visitation schedule in the child’s best interests, which includes:
- The relationship between the child and the grandparent
- The relationship between the parents (or the person the child lives with) and the grandparent
- The time that has elapsed since the child last had contact with the grandparent
- The effect visitation will have on the relationship between the child and the child’s parents
- If the parents are divorced or separated, the time-sharing arrangement between them
- The good faith of the grandparent in filing the application
- Any history of physical, emotional, or sexual abuse or neglect by the grandparent
- Any other factor relevant to the best interests of the child
Can a Grandparent Get Custody or Become a Guardian?
It is extremely emotional if a child loses their parent or is removed from their custody. In these situations, grandparents can become the child’s legal guardian depending on the circumstances. In some situations, grandparents can even request custody of their grandchild from the parents. This may be in the event of:
- Incapacitation
- Economic limitation
- Abandonment
- Child abuse or neglect
- Substance abuse
- Mental health matters
- Incarceration
- Medical conditions
It’s critical to understand that custody has a different, higher burden to prove than visitation. Rescinding custody from a fit parent requires the grandparent to show that the parent is unfit or that exceptional circumstances make custody necessary to shield the child from harm or danger. Because these matters are highly complex and dependent on the specific facts of the case, obtaining guidance from an experienced family law attorney is in your best interest.
CONTACT OUR FIRM
If you are a grandparent struggling with a custody situation involving your grandchild, contact our firm today. We are here to advocate for you and walk you through the process each step of the way. Reach out to speak with a dedicated family law attorney. If you need an experienced legal team to guide you through your divorce, contact Townsend, Tomaio, Newmark & Clancy L.L.C today.
