New Jersey's original grandparent visitation statute allowed visitation only when parents were deceased, divorced or separated. In 1993 that stipulation was removed, allowing grandparents to sue for visitation of children living in intact families.
Provisions of New Jersey Law
Grandparents bear the burden of proving "by a preponderance of the evidence" that visitation is in the best interest of the child.
In determining the best interest, the court considers the following:
- The relationship between the child and the grandparent
- The relationship between the grandparent and each of the child's parents or the person with whom the child is residing
- The time elapsed since the last contact with the grandparent
- How visitation will affect the relationship between the child and the child's parents or the person with whom the child is residing
- Any time-sharing arrangement which exists between divorced or separated parents with regard to the child
- The grandparent's "good faith" in filing the application
- Any history of abuse or neglect by the grandparent
- Any other relevant factor.
If the grandparent has been a full-time caretaker for the grandchild in the past, that is prima facie evidence that visitation would be in the child's best interest. Prima facie evidence appears to be sufficient to prove an allegation; however, it can be rebutted.
Adoption terminates the right to visitation unless the adopting party is a stepparent.
See New Jersey Revised Statutes, 9:2-7.1..
The Issue of Constitutionality
The U.S. Supreme Court dealt grandparents a blow with its 2000 decision of Troxel v. Granville. This decision basically stated that "fit parents" are presumed to be acting in the best interests of their children when they cut off relationships with grandparents.
In order to successfully sue for visitation, grandparents must overcome this presumption. In other words, the burden of proof falls heavily on the grandparents.
Troxel v. Granville called into question the constitutionality of most grandparent visitation laws. New Jersey was required to examine its statute in 2001 in the case of Wilde v. Wilde. In that case the court of appeals declined to rule on the facial constitutionality of the law, deciding instead that the statute was unconstitutional as applied. The grandfather in the case had circumvented the mother's decision about contact by going to see his grandsons at their school. In addition, the evidence suggested that he had slandered the mother. The court suggested that he should have instead have made "respectful and patient overtures."
A real decision about the statute's constitutionality had to wait until the 2003 case of Moriarty v. Bradt. The justices upheld the constitutionality of the law but added the qualifier that the grandparents must be able to show that lack of visitation would cause harm to the child, a tougher task than the usual best interests of the child test. If the grandparents are successful in meeting this harm standard, the parents are to propose a visitation schedule.
If the grandparents are not satisfied with the visitation schedule, further court action will take place to finalize the schedule.
Meeting the Harm Standard
The 2005 case of Mizrahi v. Cannon demonstrates the difficulty of meeting the harm standard. The grandparents who sued for visitation represented the grandchild's only link to her paternal relatives and also to her father's Jewish culture. The grandparents' attorneys listed 18 "possible harms" that the child could suffer in the absence of contact with her paternal grandparents. The New Jersey appeals court reversed the award of visitation, however, contending that the grandparents had not proven that harm would result. The court found that the harms cited, such as "loss of potentially happy memories," did not constitute strong enough reasons to interfere in parental decision-making.
In another case, Rente v. Rente (2007) grandparents had their visitation taken away on appeal. Testimony had shown that their contact with their grandson primarily consisted of babysitting him when his regular sitter, his other grandmother, was unavailable. The court found that the grandparents had not shown that any harm to their grandson would result from a lack of contact.
Learn More: A Short History of Grandparent Visitation Rights