Grandparent Visitation

When a grandparent case comes before the court, the court must open the door of the process to the grandparents if they meet their initial burden. However, as the case goes along, once it becomes clear that grandparents cannot ultimately prove actual harm to the grandchild, the court can and should discuss the case to end the imposition on the rights of the parents.

Because the New Jersey Grandparent Visitation Statute, N.J. Stat. Ann. § 9:2-7.1, is an incursion on a fundamental right (the right to parental autonomy), the Supreme Court of New Jersey has held that it is subject to strict scrutiny and must be narrowly tailored to advance a compelling state interest. Prior New Jersey jurisprudence establishes clearly that the only state interest warranting the invocation of the State’s parens patriae jurisdiction to overcome the presumption in favor of a parent’s decision and to force grandparent visitation over the wishes of a fit parent is the avoidance of harm to the child. When no harm threatens a child’s welfare, the State lacks a sufficiently compelling justification for the infringement on the fundamental right of parents to raise their children as they see fit. However, when harm is proved and the presumption in favor of a fit parent’s decision making is overcome, the court must decide the issue of an appropriate visitation schedule based on the child’s best interests. The New Jersey Supreme Court is satisfied that United States Supreme Court decisions fully support its conclusion that interference with parental autonomy will be tolerated only to avoid harm to the health or welfare of a child.

The Courts in New Jersey have made some interesting findings in Grandparents Visitation Law:

Order dismissing a grandfather’s complaint for grandparent visitation was reversed because the non-dissolution docket (FD) complaint should not have been dismissed since a contemporaneous abuse and neglect (FN) proceeding was pending as FD and FN actions should be heard by the same judge or in close proximity to each other. B.C. v. New Jersey Div. of Child Protection and Permanency, 450 N.J. Super. 197, 161 A.3d 125, 2017 N.J. Super. LEXIS 60 (App.Div. 2017).

Trial court erred in holding that grandparents could not institute litigation before visitation had been denied with finality, as no such threshold requirement is imposed by this section or the case law construing it. Major v. Maguire, 224 N.J. 1, 128 A.3d 675, 2016 N.J. LEXIS 1 (N.J. 2016).

In grandparent visitation cases when a party seeks to have the matter designated as “complex,” the plaintiff should ordinarily file a non-conforming complaint, as permitted by N.J. Ct. R. 5:4-2(i), to supplement the form pleading required by Directive 08-11. Major v. Maguire, 224 N.J. 1, 128 A.3d 675, 2016 N.J. LEXIS 1 (N.J. 2016).

Even when it has afforded grandparents the opportunity to conduct fact or expert discovery, the trial court should not hesitate to dismiss a grandparent visitation action without conducting a full trial if the grandparents cannot sustain their burden to make the required showing of harm; to that end, it may dismiss summary actions pursuant to N.J. Ct. R. 4:67-5, and decide complex visitation cases by summary judgment under N.J. Ct. R. 4:46-2(c) Major v. Maguire, 224 N.J. 1, 128 A.3d 675, 2016 N.J. LEXIS 1 (N.J. 2016).

In determining whether expert testimony is appropriate in grandparent visitation cases, trial courts should be sensitive to the impact of expert involvement on family resources, protective of the privacy of the child, and mindful of an expert’s potential value to the court and parties in suggesting a resolution of the dispute. Major v. Maguire, 224 N.J. 1, 128 A.3d 675, 2016 N.J. LEXIS 1 (N.J. 2016).

As plaintiffs alleged in detail their involvement in their granddaughter’s life from birth and contended that their alienation from the child would cause her harm, and, based on these allegations, established a prima facie showing of harm to the child at the pleading stage, as required by Moriarty v. Bradt, 827 A.2d 203 (N.J. 2003), the trial court should have denied defendant mother’s motion to dismiss and given plaintiffs the opportunity to satisfy their burden of proving harm. Major v. Maguire, 224 N.J. 1, 128 A.3d 675, 2016 N.J. LEXIS 1 (N.J. 2016).

In grandparent visitation cases, family part judges have broad discretion under N.J. Ct. R. 5:4-4 and 5:5-7(c) to permit, deny, or limit discovery in accordance with the circumstances of the individual case. Major v. Maguire, 224 N.J. 1, 128 A.3d 675, 2016 N.J. LEXIS 1 (N.J. 2016).

When grandparents file a complaint seeking contacts with their grandchildren under the statute, the trial court must conduct a fact-sensitive inquiry addressing the seven particularized factors in N.J. Stat. Ann. § 9:2-7.1(b)(1) to (7), as well as the any other factor fail safe category in § 9:2-7.1(b)(8). R.K. v. D.L., 434 N.J. Super. 113, 82 A.3d 305, 2014 N.J. Super. LEXIS 9 (App.Div. 2014).

When a litigant brings an action seeking grandparent visitation under N.J. Stat. Ann. § 9:2-7.1, the vicinage Family Part Division Manager shall designate the matter as a contested case after joinder of issue and refer the case for individualized case management by a Family Part judge selected by the vicinage Presiding Judge of Family; the judge shall review the pleadings and determine whether active case management is needed. R.K. v. D.L., 434 N.J. Super. 113, 82 A.3d 305, 2014 N.J. Super. LEXIS 9 (App.Div. 2014).
Superior Court of New Jersey, Appellate Division holds that a complaint seeking grandparent visitation as the principal form of relief should not be automatically treated by the Family Part as a summary action requiring expedited resolution, merely because it bears an Family Division docket number. R.K. v. D.L., 434 N.J. Super. 113, 82 A.3d 305, 2014 N.J. Super. LEXIS 9 (App.Div. 2014).

Trial court erred by dismissing the petition for visitation filed by a child’s maternal grandparents without affording the grandparents the opportunity to conduct discovery as they established a prima facie case for relief under N.J. Stat. Ann. § 9:2-7.1 and they were not required to present expert testimony to meet their burden of proof. R.K. v. D.L., 434 N.J. Super. 113, 82 A.3d 305, 2014 N.J. Super. LEXIS 9 (App.Div. 2014).

In a visitation dispute between a child’s paternal grandparents and the maternal grandmother, the maternal grandmother’s status as a psychological parent did not put her on equal footing with the fundamental autonomy of a fit parent in making child-rearing decisions, thus, in applying the applicable best interest of the child standard, the paternal grandparents were properly granted visitation. Tortorice v. Vanartsdalen, 422 N.J. Super. 242, 27 A.3d 1247, 2011 N.J. Super. LEXIS 182 (App.Div. 2011), certif. denied, 209 N.J. 233, 36 A.3d 1064, 2012 N.J. LEXIS 179 (N.J. 2012).

Trial court erred in granting grandparents visitation under N.J. Stat. Ann. § 9:2-7.1, as evidence that they occasionally babysat their grandson, then two, was insufficient to satisfy the high burden of proof of harm required under Moriarty v. Bradt, 827 A.2d 203 (2003), to rebut the presumption in favor of parental decisionmaking. Rente v. Rente, 390 N.J. Super. 487, 915 A.2d 1099, 2007 N.J. Super. LEXIS 48 (App.Div. 2007).

The Warren Law Group, LLC can help you file for visitation of your grandchildren.  Grandparent’s visitation rights do exist in New Jersey.