“I have been my granddaughter’s primary caretaker for several years. My daughter recently died, and now my son-in-law wants to permanently exclude me from my granddaughter’s life. Do I have legal rights?”
Grandparents’ right to play an active role in the lives of their grandchildren 
continues to reach courts around the country and affect the lives of many families. According to current law, grandparents who have been limited or barred from visiting grandchildren must show sufficient actual harm to the grandchildren to warrant a full hearing. At the same time, the law protects the rights of parents essentially to raise their children as they see fit.
In some cases, parents prevent grandparental visitation due to an alienated relationship between the grandparents and one or both of their own children. This becomes even more complicated when a biological child dies, and the remaining parent becomes an obstacle to grandparent visitation. Until recently, New Jersey courts took a harsher view towards grandparents’ rights, based on the landmark U.S. Supreme Court opinion in Troxel v. Granville (2000), which upheld the basic constitutional right of parents to raise their children largely undisturbed from outside influences.
In Moriarty vs. Bradt (2003), the New Jersey Supreme Court required grandparents to prove the alienation resulting from lack of visitation would cause actual harm to the grandchild and to allege in detail their involvement in the grandchild’s life from birth.
In 2014, the NJ Appellate Division published R.K. and A.K. vs. D.L., Jr., a case involving significant conflicts over grandparents’ rights. R.K. and A.K. had lived together with their granddaughter, Olga, and K.K., Olga’s mother (their daughter) for a number of years. K.K. had been in a high conflict relationship with Olga’s father, D.L., Jr., who had tried to wrest primary custody of Olga and her younger brother, but he lost in Family Court. D.L. sought custody of Olga again after Olga’s younger brother, 18-month-old Charles, died in a tragic drowning accident, for which D.L. held K.K. and her parents responsible, but law enforcement did not. Thereafter, K.K. also died, D.L. took custody of Olga and then he systematically excluded R.K. and A.K. from Olga’s life. Grandparents R.K. and A.K. commenced a Family Court action to maintain contact with Olga after D.L. made it clear that he would never voluntarily permit Olga to be in contact with them. The trial court proceeded with the matter summarily, and rejected the grandparents’ petition, without a hearing. The Appellate Division reversed, disapproving of the trial court’s methodology, and sent the case back for a hearing.
In 2016, in Major vs. Maguire, the N.J. Supreme Court essentially upheld the Appellate Division’s decision in R.K. and A.K. vs. D.L., Jr., and approved the procedural and discovery requirements imposed by the Appellate Division in that case, with one caveat:
The Supreme Court differentiates between truly “complex” grandparent visitation cases, requiring full discovery rights for the grandparents, and cases that could be handled “summarily”. The High Court said trial court judges should pay close attention to the facts of each case, case manage them, and strongly recommend Alternative Dispute Resolution methods (mediation and arbitration) to reduce the time, costs, and strain on grandparents and custodial parents. These cases are of constitutional magnitude, since they involve requested intrusions into parental decision-making, balanced against the possibility or probability of actual harm to grandchildren who are alleged to be deprived of the bonded relationship with their grandparents, among the closest relatives of their deceased parent.
Major v. Maguire appears to have softened the previous blow to grandparents’ rights by putting into place a specific process for determining harm. Grandparents who meet a threshold of proof should be allowed to get discovery and introduce expert testimony at a full hearing. This may involve appointment of a neutral expert to assess the relationship, or require the parties try to resolve their differences through mediation.
The new approach, while still limiting, may enable more grandparents to meet the threshold of harm and prove that visitation is in their grandchildren’s best interest.
New Jersey grandparents have rights, and our experienced Central Jersey family law attorneys will help you navigate them. If you are in a power struggle around visitation, please call Hanan M. Isaacs, P.C., at 609-683-7400, or contact us online to make a near-term appointment. Call today. You will be glad you did.