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Published: 2008-03-26

New Jersey Family Law: Grandparent Visitation Rights



Introduction

All fifty states have enacted what is often called a "grandparents' visitation statute", which allows grandparents - and sometimes siblings or other people - to petition the court for the right to spend time with a child, over the objections of the child's parent. In enacting these laws, the states have tried to strike a balance between the right of families to choose their associations and raise their children as they see fit, and the widely held belief that a child should have the benefit of a grandparent's love and care, even if the court has to enforce it. It is a difficult balance to strike, and many states have found it impossible to uphold grandparents' visitation statutes, in light of the extraordinarily strong constitutional protection of the family's fundamental rights.

The issue was recently addressed by the United States Supreme Court on January 12, 2000 in the case of Troxel v. Granville. In this case, the Court heard arguments on the rights of grandparents and other third parties, to visit children over the objection of the children's parents. It is one of the rare times the Court has considered family law. Unfortunately, the Court's ruling was limited to the nonparental visitation statute of Washington. It held that the grandparental visitation statute of that state was unconstitutional because it permitted the state courts to impose visitation without sufficiently considering the fit parents' objections.

Grandparent Visitation Rights Generally

Historically, grandparents had no special right to visit or communicate with a grandchild if a parent had forbidden such contact. In the 1970s and 1980s, however, all states enacted legislation that granted grandparents and/or third parties visitation rights. The states justified these statutes under a state's authority as parens patriae, that is, its authority to act in the best interests of its children citizens. The proliferation of these statutes reflects two factors. One is simply the increase in the number of grandparents who are healthy and active in social causes. The other is the increase in the number of children who are being raised in non-intact families.

The statutes granting grandparents the right to petition for visitation fall into two general categories. Under the first, most typical kind, grandparents may petition for visitation of their grandchildren only where there has been some kind of disruption of the "intact family," i.e., divorce, death of a parent, adoption, or termination of parental rights. This type of statute has been enacted in Alabama, Alaska, Arkansas, California, Colorado, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, Ohio, Pennsylvania, Texas, Virginia, West Virginia, and Wyoming. Under the second kind of statute, there does not need to be any kind of disruption of the intact family. Rather, a grandparent can petition for visitation so long as such visitation would be in the best interests of the child. This type of statute was enacted in Connecticut, Delaware, Idaho, Kentucky, Montana, New Jersey, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Washington, and Wisconsin.

In recent years, the second type of statute has come under attack as being an unconstitutional infringement upon the right of the parents to decide with whom their children may associate. The Wisconsin Court of Appeals was the first state to agree with this argument, and it decided that the grandparent visitation statute was unconstitutional. Soon thereafter, the courts in Connecticut, Kentucky, North Dakota, Tennessee and Washington held their statutes unconstitutional as applied.

Given the trend of courts finding greater parental authority and autonomy, the first type of statute also came under attack. The courts in Florida, Georgia, and Nevada also held their grandparent visitation statutes unconstitutional, and the court in Virginia restricted the rights of grandparents under the Virginia statute by holding that the grandparents must prove not just that visitation would be in the best interests of the children but that the children would suffer harm if visitation were not granted.

Following the United States Supreme Court's decision in Troxel v. Granville, the state legislatures will have to revisit their own grandparent visitation statutes to make sure that the circumstances under which third parties may petition for visitation do not violate the fundamental rights of the parents.

After the decision, as before, visitation of a grandchild, visitation must always be in the best interests of the child. The starting point for determining whether grandparent visitation will serve the best interests of the child is to analyze the grandparent-grandchild relationship. Courts consider the length of the relationship and the frequency of actual contact as primary evidence that the relationship should be preserved. A grandparent's mere desire for a relationship, when none exists, is generally not sufficient to impose visitation over the objections of the parents. The hostility of the parents to the grandparents is also an extremely important factor, although it is not an overriding factor. Obviously, if the grandparents were driven to bring a lawsuit against the parents for visitation, there is hostility. It is up to the court to determine whether the hostility is deep-seated or just the inevitable result of friction over the lawsuit at issue. Finally, the court will look at the totality of the circumstances, considering tangential relationships and the family unit as a whole.

Many lawyers and psychologists agree that grandparent visitation cases are often just vicious family disputes that replay old hurts, force neutral parties to pick sides, and, worst of all, place children in the heart of adult conflicts. For these reasons, most legal scholars and psychologists agree that grandparent visitation cases should be limited to those cases where the grandparents and grandchildren know each other well and have a deep existing bond.

Grandparent Visitation Rights in New Jersey

New Jersey's Grandparents' Visitation Statute, N.J.S.A. 9:2-7.1 allows a grandparent or sibling of a child residing in this State to make an application for visitation. The applicant must prove that the visitation is in the best interest of the child. In making this determination, the court must consider eight factors, including:

  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 time sharing arrangement which exists between the 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.
By its terms, this statute applies to intact families as well as those where separation, death, or divorce have split the family. It has been upheld as constitutional by a lower court, although its constitutionality was challenged before the New Jersey Supreme Court in 1999. In a case called In the Matter of the Adoption of a child by W.P. and M.P, Harriet Dinegar Milks argued before the Court that the statute should not be applied to intact families unless it is first shown that the child will suffer harm without the visitation. The high court refused to address the constitutional issue but decided the case in our client's favor, ruling that the visitation statute does not operate to permit court-ordered visitation by biological grandparents, after a child has been placed in an adoptive home. The case is thus an important one in defining the rights of adoptive families in this State. By holding that the child's adoptive grandparents were her family and that the biological grandparents had no rights under the visitation statute following the termination of their child's parental rights, the Supreme Court sent a message loud and clear, that adoptive families are not second class citizens, but have the same rights to grow and develop autonomously as any family does.

New Jersey's grandparents' visitation statute is not affected by the U.S. Supreme Court's ruling in Troxel v Granville, which is limited to the visitation statute of Washington.

Our firm monitors developments in the law of grandparental visitation rights closely. Should you have any questions about the status of the law in this State, we invite you to contact us.

Conclusion

By the time a grandparent feels it is necessary to go to court to force visitation with a grandchild over the objections of a parent, the rancor and hostility between the parents and grandparents are likely to be high. Mediation is often helpful in these situations, to help both sides see the positive aspects of continuing the grandparent-grandchild bond and the need to respect parental authority. Overriding both these considerations, however, must be the best interests of the child.