Your son or daughter is divorced or deceased. You do not get along with his/her former spouse, and that spouse is refusing to allow you to see your grandchildren. So what do you do?
New Jersey has statute which provides for grandparent visitation. The statute is as follows:
a. 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.
b. In making a determination on an application filed pursuant to this section, the Court shall consider the following factors:
(1) The relationship between the child and the applicant;
(2) The relationship between each of the child’s parents or the person with whom the child is residing and the applicant;
(3) The time which has elapsed since the child last had contact with the applicant;
(4) 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;
(5) If the parents are divorced or separated, the timesharing arrangements which exist between parents with regard to the child;
(6) The good faith of the applicant in filing the application;
(7) Any history of physical, emotional or sexual abuse or neglect by the applicant; and
(8) Any other factor relevant to the best interests of the child.
c. With regard to any application made pursuant to this section, it shall be prima facie evidence that visitation is in the child’s best interest if the applicant had, in the past, been a full-time caretaker of the child. N.J.S.A. 9:2-7.1
While this statute allows a grandparent to apply to the Court and request visitation rights, the Statute does not make the visitation automatic. Until recently, the grandparent had to prove to the Court that they met the above factors and visitation with his/her grandchild was in the best interest of the child.
That burden of proof has been recently changed by case law. In the case of Moriarty v Bradt, 177 N.J. 84 (2003), the Court held that New Jersey’s Grandparent Visitation Statute was constitutional, however, it held that before visitation can be ordered over the objection of the child’s parent, a Court must find that an actual harm will result to the child’s health or welfare without such visitation.
In other words, if a grandparent successfully meets the factors set forth in the statute, visitation will only be order if the grandparent can additionally prove that without the visitation, there will be harm to the grandchild.
Why is this burden so difficult?
This burden is a tough burden to overcome because visitation with a child, against the child’s fit parent’s wishes, interferes with the fit parent’s fundamental liberty interest protected by the due process close of the Fourteenth Amendment of the United States Constitution. Moriarty, 177 N.J. at 101.
In other words, a fit parent’s right to raise their child as they see fit is a Constitutionally protected right. Therefore, if an otherwise fit parent does not believe that visitation with a child’s grandparents are in the child’s best interest, the Court will not interfere with the fit parent’s wishes, unless the grandparent can prove that the grandchild will be harmed without the visitation.
If you are seeking to make a grandparent visitation application, I suggest that you discuss with your attorney the facts of your case and the success rate of overcoming this strong burden.
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