Grandparents’ Legal Rights in New Jersey
N.J.S.A. 9:2-7.1 provides grandparents living in New Jersey with the right to seek an order for visitation rights with their grandchildren. In filing an application with the court to establish this visitation, the burden falls upon the grandparent to “prove by a preponderance of the evidence” that such visitation is in the best interests of the child. If the petitioning grandparent has been a full-time caretaker for the child, it is presumed that visitation is in the child’s best interest and the court then looks to the other statutory factors. The statute lists eight factors for the court to consider in reaching its decision.
(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.
A grandparent’s application for visitation generally follows a family crisis, such as the death of one of the child’s parents, a divorce between the parents or a rift between the grandparent and the child’s parent or parents. In some cases, where the child is older, the child may have expressed a desire to visit with a grandparent, a request which their parent has denied. If a grandparent has established a close and continuing relationship with their grandchild, the grandparent may be able to demonstrate that the first factor listed above has been established. However, the more time that elapses between the last contact with the child and the court application, the harder it will be to meet the third factor. And an existing rift between grandparent and parent will mitigate against granting visitation to the grandparent (factor two).
The court will also look at the impact of awarding grandparent visitation on the relationship between the child and his or her parents (factor four) and upon their time-sharing arrangement with the child, if they are divorced or separated. (factor five).
In 2003, the New Jersey Supreme Court decided the case of Moriarty v. Bradt, 177 N.J. 84 (2003). The court held that a grandparent must prove that denial of visitation with their grandchild is detrimental to the child. The court found that 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. Thus, there is a presumption in favor of the parent’s decision-making authority, even if it extends to excluding contact between their child and the child’s grandparent. Following the Moriarty decision, several appellate court decisions have rejected applications for visitation by grandparents, even by those grandparents who frequently babysat for their grandchildren, provided a stable influence in their grandchildren’s lives and where evidence was provided by experts to support the grandparent’s claim. See Mizrahi v. Cannon, 375 N.J. Super. 221 (App. Div. 2005); Rente v. Rente, 390 N.J. Super 487 (App. Div. 2007). Thus, although the statute would appear to permit grandparents to seek visitation with their grandchildren, such applications are often unsuccessful.
The family law team at Wilentz, Goldman & Spitzer serves New Jersey clients in Atlantic County, Bergen County, Burlington County, Essex County, Hudson County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, and Union County, in addition to serving clients in New York City.