Oftentimes, when a couple seeks to get divorced, it not only affects their immediate family members, but may also peripherally impact the lives of those close to them, especially grandparents. Specifically, it isn’t uncommon for a divorce to result in grandparents being unfairly shut out of their grandchildren’s lives. This type of situation can cause an intense amount of pain and emotional suffering for grandparents who are abruptly prevented from having contact with their grandkids.
Overall, there are several factors associated with why grandparents choose to pursue visitation rights with their grandchildren, including:
- A grandchild’s parent dies;
- A divorce leads to a rift between a child’s parents and his or her grandparents; or
- A grandchild expresses a desire to live with a grandparent, a request of which is denied by his or her parent(s).
With this in mind, the State of New Jersey decided to take legislative measures to afford eligible grandparents with the right to continue to maintain a relationship with their grandchildren. Pursuant to N.J.S.A. 9:2-7.1, grandparents in New Jersey may seek an order from the family court of applicable jurisdiction granting them visitation with their grandchildren. Upon filing an application for visitation, a grandparent or grandparents (if filed jointly) have the burden of proving by a “preponderance of the evidence” that such visitation is in a child’s best interests. In rendering a decision in this regard, the court considers the following statutory factors:
- 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 arrangement which 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 interests of the child.
In general, it is important to keep in mind that there are several circumstances unique to a family that may influence a court to rule either in favor or against a grandparent seeking visitation. For example, if a grandparent had served as a full-time caretaker in the past for his or her grandchild(ren), this will likely be considered by the court as prima facie evidence that visitation would be in the grandchild or grandchildren’s best interests. However, while prima facie evidence may support an allegation, it can be rebutted. In addition, if a party opposing a grandparent visitation order demonstrates that there has been a long standing rift between a grandparent and a child’s parent, this may work against the applicant seeking visitation.
Notwithstanding the above, the New Jersey Supreme Court has subsequently sought to significantly limit the scope by which grandparents would be granted visitation. Specifically, in 2003, the court held in Moriarty v. Bradt, 177 N.J. 84 (2003), that a grandparent must establish that not seeing their grandchild would be to his or her detriment. In so ruling, the court reasoned that this was the only way to safeguard and protect the constitutional rights of parents to bring up their child/ren as they deem appropriate. Since Moriarty, several New Jersey appellate courts have denied grandparent visitation to a number of applicants, even when they were frequently babysat they grandchildren and played highly meaningful roles in their lives.
