Introduction

While endless press has been devoted to divorce issues in the United States, the relationship between children and their grandparents is often an overlooked aspect of marital dissolution. Indeed, the bond formed between grandchildren and grandparents can be both a defining force in a young person’s life and an important source of light for an older person. Unfortunately, the desires and needs of children and their grandparents are not always considered in the wake of a tumultuous divorce.

Under New Jersey law, grandparents have limited rights

Thanks to a 1971 statute giving standing to grandparents’ visitation rights, New Jersey grandparents have some recourse when one parent or the other denies visitation. This is true even when intact families deny grandparents the right to see grandchildren, an advance that was introduced into the law over 20 years ago.

Under the New Jersey law, grandparents bear the burden of proving that lack of visitation will cause actual harm to children. The evidentiary threshold that grandparents must meet is a “preponderance of the evidence”, which applies in almost all civil litigation.

Constitutional questions

Based on a landmark U.S. Supreme Court case in 2000, the constitutionality of grandparental visitation statutes, such as New Jersey’s, were called into question. In Troxel v. Granville, the Court addressed whether a parent’s constitutional right to rear children in a specific manner trumps a state statute entitling third parties to petition for visitation over parents’ objections. In short, the Court held that fit parents are presumed to act in their children’s best interests, even in cases where they refuse to permit family members’ visitation.

Following Troxel, and against its backdrop, the New Jersey Supreme Court reviewed the grandparental visitation statute, N.J.S.A. 9:2-7.1. In Moriarty v. Brandt, 177 N.J. 84 (2003), our Supreme Court questioned whether the statute interfered with the parents’ constitutional rights. The grandparents’ daughter divorced the children’s father and later died when the children were pre-teens. During their mother’s lifetime, the children spent significant time with the maternal grandparents and had adeveloped a bonded relationship with them.

Despite these facts, the children’s father decided to limit their contacts with his former wife’s parents.

Prior to Troxel v. Granville, grandparents who petitioned the trial court on similar facts would almost certainly have prevailed over an objecting parent.

In Moriarty, the trial court gave the grandparents monthly visitation with their grandchildren, plus extended summertime contacts. On the father’s appeal, however, the Appellate Division reversed, relying on Troxel and finding a constitutional infringement.

On review, the New Jersey Supreme Court interpreted the statute to require a showing of actual harm. “Best interests of the child” had to yield to the new standard, in light of Troxel.

In Moriarty, the Court established a three-step process that grandparents must satisfy before the trial court will interfere with a parent’s decision against contact:

1) Visitation must be necessary to avoid actual harm to the child. Harm may be established by a psychological expert and grandparental or other testimony. Without an expert, proof of harm will be very difficult to demonstrate.

2) Upon a showing of actual harm, the earlier presumption in favor of parental decision-making disappears. Then, the objecting parent must provide a visitation plan. If the grandparents accept, that is the end of the case.

3) If the grandparents do not accept, then the trial court must determine a schedule for visitation that is in the children’s best interests under the visitation statute.

Best Interests Factors After the Presumption is Overcome

In applying the New Jersey statute, the trial court will consider the following factors in awarding grandparents visitation, in the children’s best interests:

•· The child’s relationship with the grandparents;

•· The grandparents’ relationships with the child’s parents;

•· Any elapsed time since the last contact with the grandparents;

•· Visitation’s effect on the relationship between the child and the child’s parents;

•· Existing time-sharing arrangements between divorced or separated parents;

•· “Good faith,” or lack thereof, by grandparents filing applications; and

•· A grandparent’s history of abuse or neglect.

Special priority is given to grandparents who have served as fulltime caregivers to grandchildren.

Aftermath of Moriarty

In more recent decisions, the Appellate Division has denied grandparents’ visitation rights, absent a showing of actual harm to the children. The actual harm cannot be to the grandparents, even if it is true that they may feel emotionally devastated by the cut-off.

Conclusion

If you or someone you know faces a cut-off of grandparental visitation, or a request for visitation that interferes with a parent’s decision-making rights, an immediate sit-down meeting with a Certified Family Law Specialist is vitally important. Time could be of the essence.

Your lawyers should investigate the facts, research the law, and give you an opinion as to your range of options, including what may be the best option for you. It is as valuable for you to determine not to proceed as it is that you should proceed.

Life crises occur regularly, often without warning. It is your timely response to those events that can make all the difference.

Write or call us to discuss your Family Law matter. We will hold your information in confidence to the fullest extent permitted by law. We will help you figure out how best to overcome the difficult circumstances you may be facing. Please contact us today.