New Jersey Divorce Lawyers Handling Grandparent Visitation
In a progressive move, the State of New Jersey passed a statute conferring visitation rights to grandparents and siblings of children in 1993. N.J.S.A. 9:2-7.1. However, throughout the years since, our Courts have strictly interpreted the language in the face of challenges posed, for the most part, by parents opposing applications made by grandparents for visitation against the wishes of the parents. The Courts have been forced to weigh the interests of grandparents against those of the parents. What have emerged are legal standards that are child-centric with high thresholds that have to be met by grandparents seeking visitation with them.
The Supreme Court of New Jersey addressed the issue of grandparent visitation and expounded upon the grandparent visitation statute in the case of Moriarty v. Bradt, 177 N.J. 84 (2003), cert. denied Moriarty v. Bradt, 54 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78, 2004 U.S. LEXIS 1047 (U.S. Feb. 23, 2004). The Moriarty case arose out of a divorce action where the parties had two children and while separated, the mother was hospitalized for drug abuse during which time the maternal grandparents were provided visitation while the divorce was pending and the children were in the custody of the father. Id. at 88.
The divorce was granted in 1993. The father received sole custody, and the mother had supervised visitation. By August 1994, the mother was granted unsupervised visitation, and the grandparents saw the children during most of those weekend visitations. The mother then died in 1999. The grandparents sought visitation, and the Court granted temporary visitation to the grandparents pending a hearing on the issue. The Court ordered evaluations of the father, who objected to the visitation, the grandparents and the children.
The report recommended unsupervised grandparent visitation once per month for two full days and other recommended contact. The father brought an application to set aside the temporary visitation order when the Supreme Court case of Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 A. Ed. 2d 49 (2000), had been entered seeking a declaration by the Court that the New Jersey statute was unconstitutional as well in that it infringed on fit parents’ constitutional right to rear their children. Id. at 92-93.
Ultimately, a hearing was held and the trial court ordered monthly visitation alternating between five-hour day visits one month and a visit with two overnights the next month and one extended visitation in July or August. The Court’s decision was based primarily on its relevance on the grandparent’s expert, who made a recommendation “to protect the children from the harm that will befall them if they were alienated from their grandparents.” In other words, if the children did not have visitation with their grandparents, they would emotionally or psychologically be harmed. Id. at 24.
The father appealed that decision, which resulted in the New Jersey Supreme Court decision that reversed the Appellate Division decision that had reversed the trial court. The Supreme Court found that the statute was valid and the decision of the trial court was sound and should remain in place.
The New Jersey Supreme Court analyzed the statute, the United States Supreme Court decision of Troxel v. Granville, supra, and social science resource regarding the importance of the grandparent/grandchild relationship in the lives of children. Id. at 94-97 citing Thomas E. Denham and Craig W. Smith, The Influence of Grandparents on Grandchildren: A Review of the Literature and Resources, 38 Fam. Rel. 345, 345 (1989) and The Grandparent/Grandchild Relationship: Family Resource in an Era of Voluntary Bonds, 34 Fam. Rel. 343, 344 (1985), in which a study entitled Grandparents/Grandchild: The Vital Connection (1981) by Arthur Kornhaber, M.D. and Kenneth L. Woodward wherein it was observed:
The emotional attachments between grandparents and grandchildren have been described as unique in that the relationship is exempt from the psycho-emotional intensity and responsibility that exits in parent/child relationships. The love, nurturance, and acceptance that grandchildren have found in the grandparent/grandchild relationship “confers a natural form of social immunity on children that they cannot get from any other person or institution.” Id. (citing Kornhaber and Woodward, Id. at xiii-xiv)
The Court held that the grandparents had met the burden created by the statute that the grandparents “must prove by a preponderance of the evidence that denial of the visitation would result in harm to the child.” Ibid. The Court held as well that in applying that standard, the due process rights of the parents is safeguarded and therefore, New Jersey’s grandparent visitation statute is constitutionally valid in light of a prior United States Supreme Court decision, Troxel v. Granville, supra, wherein the United States Supreme Court had struck down a grandparent visitation statute enacted by the State of Washington because it failed to adequately protect the rights of the parents. Ibid.
New Jersey’s grandparent visitation statute, N.J.S.A. 9:2-7.1 gives grandparents and siblings standing (recognition by the court) to bring an application before the Supreme Court for an Order for visitation so long as the applicant proves “by a preponderance of the evidence that the granting of visitation is in the best interest of the child.”
The statute requires that the Court consider the following factors in making a determination as to whether visitation should be granted:
- The relationship between the child and the applicant;
- 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 arrangements that 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; and
- Any other factor relevant to the best interest of the child
Notably, as well, the statutes specifically provides that if the applicant had, in the past, been a full-time caretaker of the child, that shall be prima facie evidence that the visitation is, in fact, in the child’s best interest. N.J.S.A. 9:2-7.1(c).
Although it is recognized that the grandparent/grandchild bond is important, the court also recognizes the right of a parent to raise one’s own child. This right has been recognized as a fundamental liberty interest that is protected by the due process clause of the Fourteenth Amendment to the United States Constitution. Id. at 38 citing Wisconsin v. Yoder, 406 U.S. 205, 232-33, 92 S. Ct. 1526, 1541-42, 32 L. Ed. 2d 15, 35 (1972). The Supreme Court has found that the right to rear one’s children is “rooted in the right of privacy.” Id. at 100.
Again, the rights of the parents are protected by imposing upon grandparents the burden of establishing by the very difficult preponderance of the evidence that visitation is necessary to avoid harm to the child. It is not enough to say that the grandparent visitation will benefit the child. The opposite is the standard. It must be shown either by expert or factual evidence that if the grandparent parenting time is denied, the children will be adversely affected. Id. at 117.
Once it is found by the court that a potential for harm exists, “the presumption and favor of parental decision making will be deemed overcome” and the parent (not the grandparent) must offer a visitation schedule. If the grandparents are satisfied with the visitation schedule offered, the next step will be obviated. If not, the next step will be that the court will have to establish a schedule that is “in the child’s best interest based on the factors set forth in the grandparent visitation statute”, i.e.:
- The relationship between the parent and the grandparents;
- The time that has elapsed since the children had last had contact with the grandparents;
- The good faith of the grandparents;
- The history of emotional, physical or sexually abuse or neglect by the grandparents, etc.
Id. at 117-121.
In a case where the grandchildren have never had a relationship (even if the relationship was thwarted by the parents), grandparent visitation will be denied such as was the case in Daniels v. Daniels, 381 NJ Super. 286 (App. Div. 2005), which was decided after the Moriarty case. Likewise, in the matter of Rente v. Rente, 390 NJ Super. 487 (App. Div. 2007), the Appellate Division reversed a trial court’s decision to grant grandparent visitation to grandparents who only occasionally babysat their grandson. The Appellate Division found that the relationship was insufficient to satisfy the higher burden of proof of harm required under Moriarty.
The issue of sibling visitation has recently been addressed by the Supreme Court of New Jersey in the case of In Re B.C., 210 NJ LEXIS 948 (September 29, 2010), wherein the Court determined that a trial court could order sibling visitation over the objection of the foster/adoptive mother. The court determined the Division of Youth and Family Services had an obligation to facilitate visitation between the non-adopted sibling and the adopted sibling, even though adoptive parents have the same rights as biological parents to raise their child as they see fit. That right, however, is not absolute and the biological or adoptive family may be ordered to permit third-party visitation where it is shown that to deny the visitation would cause harm to the child.
Complexities continue to be created as a result of an increase in blended, step-families coming before our Courts. It is anticipated that sibling and grandparent visitation may be expanded to visitation between former step-children and former step-grandparents, as well. It appears clear from the legislative history behind the grandparent and sibling statute, as well as this State’s case law, that the guiding force will continue to be the best interest of the child above all.
Given the complexities of Grandparent Visitation, Child Custody and Divorce issues in New Jersey, we advise you to contact one of our experienced divorce lawyers or family law attorneys at 973-627-7300 at Einhorn Harris today. We handle visitation and child custody throughout New Jersey.