Grandparents in New Jersey have limited rights to visit with a grandchild. Those rights were more robust in decades past, but the US Supreme Court put tight limits on state statutes and case law deemed inconsistent with actual parents’ rights to limit access to children.

What Does the NJ Statute Say?

Ideally, if you’re a grandparent, the child’s parents will allow you to spend time with your grandchild. Children need all the positive influences they can get. If the parents (whether married, divorced, or never married) don’t want you to see their children, there are limited circumstances under which you may be entitled to grandparent visitation.

New Jersey’s grandparent visitation statute states in part:

“A grandparent or any sibling of a child residing in this State may make application before the Superior Court, in accordance with the Rules of Court, for an order for visitation. It shall be the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best interests of the child.”

Per the US Supreme Court, New Jersey courts must read into the law certain language that’s not in the statute.

What Does the NJ Statute Not Say?

The US Supreme Court in 2000 examined whether a parent’s constitutional right to rear children without undue interference overrides a state statute entitling third parties to seek visitation over the parents’ objections. The Court decided it did and held that fit parents are presumed to act in their child’s best interests, even when they refuse to allow visitation by grandparents.

The New Jersey Supreme Court, three years later, wrote into state statute (as if with invisible ink) a new, initial hurdle for grandparents to clear. The Court stated that before a judge could decide if grandparents’ visitation was in the child’s best interests, it must find that the child would be harmed if they cannot see their grandparents.

Hurdle Number One – Harm to the Child

If a parent objects to grandparental visitation and the issue goes to court, grandparents must prove this harm by a preponderance of the evidence. This is the standard burden of proof in civil cases – it’s more likely than not that the child will be harmed if they can’t visit their grandparents, according to a recent appeals court decision.

The alleged harm must be:

• Clearly and specifically alleged in the court complaint;
• Significant enough to justify government involvement in the parent-child relationship;
• Identifiable and specific to the child;
• Based on an unusually close relationship between the child and grandparents and the child, or a situation such as a parent’s death; and
• Insufficient if it’s just the fact the child, if unable to see their grandparents, wouldn’t develop fond memories of them.

Courts now seek to avoid getting involved in grandparental visitation disagreements and imposing unnecessary and potentially unconstitutional burdens on fit parents exercising their judgment and raising their children. This involves parents who have said no to their own parents and parents who survive a spouse or significant other who have said no to the decedent’s parents.

Grandparents may use factual evidence and expert testimony to support their claims, if they get past the high burden of showing actual harm to grandchildren from non-contact. Factual evidence may be of the quantity and quality of time they spent with their grandchild in the past. After reviewing the facts and interviewing the child, a child psychologist could give an expert opinion that a child would be harmed without more time with their grandparents. This will become a stronger case if there is a long history of grandparental involvement in the life of a young child. Periodic contact from years past clearly will not be sufficient.

Hurdle Number Two – the Child’s Best Interests

If the grandparents prove the child would be harmed if they can’t see each other, the courts next consider the actual statutory language for grandparents to show visitation is in the child’s best interests (the standard test in custody and visitation matters).

The New Jersey statute lists factors courts must consider in evaluating grandparents’ visitation claims:

• The relationship between the child and grandparents;
• The relationship between the child’s parents or the person with whom the child lives and the grandparents;
• How much time has passed since the child last had contact with the grandparents;
• The effect visitation will have on the relationship between the child and the child’s parents or the person with whom the child lives;
• If the parents are divorced or separated, their time-sharing arrangement involving the child;
• The grandparents’ good faith in seeking visitation;
• Any past neglect or physical, emotional, or sexual abuse of the child by the grandparents; and
• Any other factor relevant to deciding whether grandparent visitation is in the child’s best interests.

If the grandparents are successful, the next step is creating a visitation schedule. This should be negotiated between the parties, but if you can’t reach an agreement, the judge will make a schedule for you.

Kingston Law Group: Get the Help You Need from the Lawyers You Trust

Whether you’re a parent or grandparent in this situation, if you have any questions about grandparental visitation, call the Central Jersey law offices of the Kingston Law Group at 609-683-7400, or contact us online for a near-term reduced fee initial consultation. We will listen to your facts, explain how the law may apply in your case, and discuss how to obtain social justice. We will present optimal choices to protect your legal rights and interests and those of your child(ren). Call or write us today. You will be glad you did.