In today’s society grandparents can serve as primary caretakers of their grandchildren, can provide daily caretaking services, or are very involved in their grandchildren’s upbringing. When a divorce occurs in a family, those grandparents are often left in limbo when it comes to grandparent visitation rights. In New Jersey grandparents (9:2A-5) can have legally enforceable rights to have access to their grandchildren if the courts determine that would be in the best interest of the child, and these rights exist if the child is living with an intact family, or if the child’s family is separated or divorced.
In 2000 the U.S. Supreme Court looked at the importance of preserving the grandparent/grandchild relationship in the wake of separation or divorce. There was support for this from experts including child psychologists. The New Jersey Supreme Court also acknowledged the importance of that relationship. But the Legislature of the State of New Jersey was ahead of the curve on this issue.
In 1972 the New Jersey Legislature enacted its first grandparental visitation rights statute. That law has been amended a couple of times (in 1973 and again in 1993), the second revision expanding grandparents’ rights to visitation. The statute now included eight factors the court would consider before making a decision on grandparental visitation:
- The relationship between each of the child’s parents or the person with whom the child is residing and the applicant;
- The time which has elapsed since the child last had contact with the applicant;
- 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;
- If the parents are divorced or separated, the time-sharing arrangement which exists between the parents 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;
- Any other factor relevant to the best interests of the child.
Although the 1993 amendment did expand grandparents’ ability to gain visitation, in 2003, the New Jersey Supreme Court heard another case that placed further onus on grandparents’ ability to visit their grandchildren after a separation or divorce. In that case, Moriarty v. Bradt, 177 N.J. 84 (2003), cert. denied, 540 U.S. 1177 (2004), the Court held a grandparent must prove that denial of visitation with their grandchild is detrimental to the child. The Court said imposing this stringent burden on the grandparent was the only way to protect the due process rights of competent parents to raise their child as they see fit. The Court’s ruling maintains parental rights to make decisions about their own children, even if that means contact with the grandparents is ultimately denied.
The stricter standard came into effect because allowing grandparent visitation is viewed as infringing on a parent or parents’ fundamental right when it comes to raising their child, i.e. the right to parental autonomy. Therefore, this raises the bar for grandparent visitation by requiring a showing of proof of harm to the child if grandparent visitation is denied.
In a January 2014 New Jersey Appellate Division ruling, the court said that in cases where there has been a long-standing close relationship between grandparents and grandchildren, a grandparent is entitled to be heard.
The important take-away from these court cases is that the courts have the ability to find in favor of grandparental visitation rights where the grandparents have been in regular, close contact with the grandchildren and have maintained a strong, positive relationship. No one wants to anticipate the breakup of a marriage or a relationship, but being an involved grandparent may make the difference between being able to remain in your grandchild’s life after the parents separate or divorce.
For more information or if you need legal assistance with New Jersey’s Grandparental Rights, give our office a call at 973-710-4366.