It takes a village to raise a child, and grandparents often serve a positive role in a child's life; a role that is invaluable to a child and family. I come from a close family, and as such, I was always very close with my grandparents. Only one grandparent is left, and I remain very close with my mother's mother, my "Mom-Mom." I grew up when children still played outside, and even more so in this day and age, grandparents are involved in their grandchildren's lives increasingly more. Because of this, New Jersey Family Law has long recognized that grandparents can file for visitation when certain conditions are met.
The issue of grandparents and child custody often arises when the child's parents either separate or divorce. Grandparents who were once an integral part of a child's may find themselves no longer able to be a part of their grandchild's life when parents separate or divorce; especially if the separation or divorce is not amicable. When this occurs, grandparents must understand the law regarding their prospective right to remain a part of their grandchildren's lives.
Does New Jersey have a grandparent visitation law?
Grandparents can petition the Superior Court of New Jersey, the "Family Court" where such matters are addressed, for an Order of Visitation when denied visitation by the child's parent(s) or guardian(s). The grandparent is considered the "petitioner" in such a matter, per New Jersey Family Law, has the burden to prove by the "preponderance of the evidence" that it is in the child's best interests for the grandparent to be granted visitation. As a general rule, however, parents in New Jersey have the right to raise their children in the manner they see fit, without interference from others. This concept is known as "parental autonomy." Per the New Jersey grandparent visitation "statute," the Superior Court presiding over the matter will consider specific factors as to whether a grandparent who petitions for the Court should be granted visitation of their grandchild or grandchildren. The specific factors are as follows:
- The child and the grandparent's relationship
- The relationship between the grandparent and the child's parents, or if the child does not live with his or her parents, the relationship between the grandparent and the person with whom the child lives
- The period of time that has passed since the child has had contact with the grandparent
- The impact that visitation, if granted to the the grandparent, will have on the relationship between the child and the child's parents or the person with whom the child lives
- The time-sharing custody arrangement between parents if they are separated or divorced
- Whether the grandparent filed the petition for visitation in good faith
- Whether the grandparent has any history of sexual abuse, physical abuse, emotional abuse, or neglect
- Any other factors that the Court considers relevant regarding the child's best interests
Under the New Jersey grandparent visitation statute, it is "prima facie" evidence (evidence that is accepted as correct until proven otherwise) that visitation is in the child's best interest if the grandparent had at one time acted as the full-time caretaker of the child.
Grandparents Must Show that Without Visitation, the Grandchild Will Face Harm
How does New Jersey Family Law reconcile the rights of grandparents with parental autonomy? A recent New Jersey Family Law case addressed this specific issue. In the case of Moriarty v. Maguire, A-110074345, decided on January 12, 2016, the New Jersey Supreme Court considered the at-times conflicting visitation rights of grandparents with the right of parents to raise their children as they see fit.
Anthony and Suzanne Major were grandparents to their son's daughter, and wanted to continue to be a part of their granddaughter's life. The Major's son, Chris Major, was separated from their granddaughter's mother, Julie Maguire, at the time of his death in 2013. In the Major's petition to Family Court, and at the subsequent hearing on the matter, the Majors submitted that they had a close relationship with their granddaughter. This relationship included weekly or bi-weekly visits. The grandparents also attended their granddaughter's dance recitals and also accompanied their granddaughter on family trips. Suzanne Major also submitted that she regularly cared for her granddaughter while her son was dying, and that her granddaughter lived with her and her husband in the final weeks of Chris Major's life. The issue before the Court was that the grandparents had only seen their granddaughter twice for short visits after Chris' death.
A Long-term Relationship with the Grandparents
Per the visitation factors specified in N.J.S.A. 9:2-7.1, the grandparents asserted that they always had a close relationship with their grandchild, and that if this relationship was not allowed to continue as was the case after their son died, the denial of this relationship with the grandchild's extended paternal family would cause her harm. The trial court ruled against the grandparents, and dismissed the case without allowing the grandparents to introduce expert testimony to support their claim that their grandchild would face harm, or allowing discovery to take place (discovery is a pre-trial procedure in which each party can obtain evidence from the other party or parties, with the goal being that the evidence obtained would help support their case). The trial court held that the grandparents did not meet the burden of showing that there would be harm to the child without visitation.
The grandparents appealed the trial court's ruling to the New Jersey Appellate Division which disagreed with the Superior Court's decision (the trial court). The Appellate Division held that the trial court should have denied the mother's motion to dismiss the case and afforded the grandparents the opportunity to fulfill their burden of proof by showing that their grandchild would be harmed if their request for visitation was denied.
After the Appellate Division's ruling, the matter was thereafter appealed to the New Jersey Supreme Court where the matter was again considered. The New Jersey Supreme Court found that the grandparents' claim of a long-term relationship with their grandchild was sufficient to allow the grandparents to proceed with their claim for visitation. In making its decision, the New Jersey Supreme Court considered how such a case should specifically proceed.
How will a grandparents' visitation rights case in New Jersey proceed?
In order to provide the opportunity for grandparents in New Jersey to prove their case, the New Jersey Supreme Court discussed another New Jersey Family Law case involving grandparents' visitation rights. In the case of R.K. v. D.L., 434 N.J. Super. 113 (App. Div. 2014)a "case management system" was outlined whereby grandparents could make their case for visitation of their grandchild or grandchildren. As applied to the case of Moriarty v. Maguire, the New Jersey Supreme Court stated that Superior Court trial judge should determine whether a grandparent visitation case is complex or not. If the grandparent visitation case is complex, initial and final case management conferences should be held by the trial court. If the case is not complex, the trial court dismiss the case without case management conferences. If, however, grandparents in New Jersey want the case to be considered complex, the grandparents may file a “non-conforming complaint.” In the non-conforming complaint, the grandparents will be required to present their case showing harm to the grandchild, and will be also be required to address the specific factors mandated by the Grandparent Visitation Statute. The child's parent will also file a pleading, and the trial court will thereafter determine whether discovery and expert testimony is required in the case.
Ultimately, in Moriarty v. Maguire, the New Jersey Supreme Court ruled that in order for a grandparent to be granted visitation rights of their grandchild against a parent's wishes, the grandparent must show by a preponderance of the evidence that without the granting of the visitation, the grandchild will face harm.
New Jersey Grandparents' Visitation Rights Attorney
Petitioning the Court in New Jersey for visitation rights of a grandchild can be complex and what is at stake is obviously high. A Grandparent's Visitation Rights attorney can, however, guide grandparents to file properly, present the necessary evidence and argument, and help grandparents can the visitation rights of their grandchildren that they deserve; whether the case is taking place in Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester, Mercer, Ocean or Salem County. Contact attorney Joseph D. Lento today to learn how he can help.