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Divorce FAQ's

1. What is brief overview of the law regarding grandparent visitation rights in New Jersey?

Given the state of New Jersey grandparent visitation rights, it is critically important to understand the legal right of grandparents, the facts that a grandparent must establish, and the factors that the court will consider in any dispute over grandparent visitation rights.

The relationship between grandparents and their grandchildren has become increasingly complex over the past few decades. More and more, grandparents are looking to the courts to obtain visitation time with their beloved grandchildren. Unfortunately, the rising divorce rate, soaring single parenthood, increased alcohol and drug use, and the financial pressures of living in New Jersey have all altered the entire New Jersey family structure.

New Jersey’s Grandparent’s Visitation Statute, N.J.S.A. 9:27.1, allows a grandparent residing in New Jersey to make an application for visitation. The grandparent must prove that visitation is in the best interests of the child. In making this determination, the court must consider eight factors, including:

1. The relationship between the child and the grandparent;
2. The relationship between the parents and the grandparents;
3. The time that has elapsed since the child last saw the grandparent;
4. The effect that such visitation will have on the relationship between the child and the child’s parents;
5. If the parents are divorced or separated, the time sharing arrangements that exist between the parents with regard to the child;
6. The good faith of the grandparent filing the application;
7. Any history of physical, emotional, or sexual abuse or neglect by the party making application; and
8. Any other factor relevant to the best interest of the child.

It shall be prima facie evidence that the visitation is in the best interests of the child if the applicant has been a full time caretaker for the child in the past. The starting point for any grandparent visitation case is whether it will serve the best interests of the child. Courts carefully consider the length of the relationship and the frequency of actual contact as primary evidence that the relationship should be preserved. Finally, the court will look at the “totality of the circumstances” when it rules on any grandparent visitation application.

2. Who has the legal burden in a grandparent’s rights case?

Under New Jersey law, the grandparent has the legal burden to prove that the denial of grandparent visitation would cause harm to the child. First, the grandparent must establish that visitation is necessary to avoid harm to the child. If the grandparent satisfies this requirement, then the parent must propose a visitation schedule. If the grandparent does not accept this schedule, then the court will determine whether the schedule is in the child’s best interests.

New Jersey does not use a best interests analysis when deciding grandparent rights cases. A dispute between a custodial parent and a grandparent is often an uphill battle. The courts often hold that they do not have sufficient jurisdiction to infringe upon a parent’s fundamental due process right to raise their children as the see fit. Any interference with any parental autonomy will only be tolerated to avoid harm to the health and welfare of the a child.

It is important to emphasize that grandparents who pursue their visitation rights have to prove that the child will be harmed if there is no visitation. The bold claims that the child will lose potentially happy memories if there is no visitation won’t cut it in court. Therefore, a grandparent must identify a specific harm that would come to the child if visitation is denied. Therefore, any grandparent seeking visitation should establish a solid pre-existing relationship between the grandparent and the grandchild, and that the child would suffer specific psychological harm from the absence of any visitation. Finally, in the very nasty cases, any grandparent who seeks visitation should consider obtaining an expert’s report to support their claims.

3. How can I enforce my legal rights to have visitation with my grandchildren?

A grandparent has to file an application with the county court house and request visitation with the grandchildren. The complaint will then be served on the parent(s). Thereafter, the court will set the case down for a case management conference. At this court hearing, the judge will make a sincere attempt to try to mediate a settlement. The judge may also refer the case to mediation. Mediation is the hot new trend in grandparent visitation cases. Mediation is an excellent way to resolve bitter grandparent visitation disputes. The court may also set the case down for a plenary hearing. At the hearing, both parties will be permitted to present evidence that supports grandparent visitations or evidence that proves that grandparent visitation would not be in the child’s best interest.

If the case is sent to mediation then it will be heard in approximately 30 to 60 days. The mediator is usually a member of the probation department. Lawyers usually are not permitted to attend the mediation session. If the mediation is not successful, the case will be sent back to the family court for a disposition.

4. What are the arguments for grandparent visitation rights?

1. Grandparents may provide a stabilizing role in their grandchildren’s lives, particularly after a divorce or crisis (such as the death of a parent).
2. Where grandparents have been involved in a child’s life, it can be traumatic for the child to suddenly be denied access.
3. The mere fact that parents are divorced, or that the grandparent’s child dies or is incarcerated, should not automatically serve to grant the custodial parent the right to sever a positive relationship between grandparents and their grandchildren.

5. What are the arguments against grandparent visitation rights?

1. The state has no business interfering with the child rearing decisions of competent parents, even if the parent determines that grandparent visitation will not be permitted.
2. Some grandparents are excluded from their grandchildren’s lives for good cause, for example, where they were abusive to their own children and cannot be trusted with the grandchildren. Some grandparents interfere with ordinary parental decision making or bad mouth one or both parents to the grandchildren, and create unnecessary aggravation.
3. If a conflict exists between the parents and the grandparents, any court interference could destabilize the home environment for the children.

6. What evidence will I need to produce to convince a court to grant me visitation rights with my grandchildren?

When a judge decides a case, it is on the basis of evidence that is formally presented to the court. Evidence consists of things, such as records and other documents, and testimony from witnesses you call to testify for you. A grandparent will have to prove that it is in the best interests of the child. To show best interest, you will need to address the following factors:

1. The love, affection, and other emotional ties that exist between the child and the grandparent;
2. The length and quality of the prior relationship between the child and the grandparent;
3. The role performed by the grandparent;
4. The grandparent’s moral fitness;
5. The grandparent’s mental and physical health;
6. The child’s reasonable preference;
7. The willing of the grandparent to encourage a close relationship between the child and the parent;
8. The effect of the child of hostility between the parent and the grandparent;
9. Any history of physical, emotional or sexual abuse or neglect of any child by the grandparent;
10. Whether the parent’s decision to deny visitation is reasonable;
11. Any other factor relevant to the physical or psychological well-being of the child.

Photographs and videotapes showing you having a meaningful relationship with your grandchild is very helpful to the court. These photographs can conclusively prove that you had a solid relationship with your grandchild. It is advisable to create a picture album of you with your grandchild and submit it to the court. The old adage that a picture is worth a thousand words is never more true in a family court. The judges get “sick” of reading endless motion papers. The judges really appreciate it if you can submit pictures to them, and this could be the proof that helps you win your case.

Other sources of proof include testimony from friends, neighbors, fellow child members, or members of clubs to which you belong. You will also need to show that visitation is in your grandchild’s best interest. Other adults who have seen you spend quality time with your grandchild make good witnesses for this purpose. You may also want to have a psychologist or a therapist to testify about the importance of your grandchildren having a relationship with you.

7. What is the seminal case on grandparent rights visitation?

The  key case is Moriarty v. Brandt, 177 N.J. 84 (2003). Here, the New Jersey Supreme Court decided the issue whether the grandparent visitation rights statute was constitutional. In the Moriarity case, the plaintiffs were the maternal grandparents of the defendant’s/fathers two children. Unfortunately, the children’s mother died from a drug overdose when the children were 12 and 9 years of age. The parties were also divorced. After the mother died, the children regularly visited with their maternal grandparents, and they had a solid relationship with them. As time passed on, the father wanted to play games and he limited the children’s relationship with the maternal grandparents. Thus, the grandparents were forced to file an application for grandparent rights.

At the trial court level, the court granted the grandparent’s monthly visitation and also extended visitation during the summer recess.  Thereafter, the father appealed and he argued that New Jersey’s grandparent visitation statute was unconstitutional. On appeal, the Moriarty court held that the father’s substantive due process rights were violated by the court ordered visitation.

The case would not die. The grandparent’s then appealed to the next level to the New Jersey Supreme Court.  The New Jersey Supreme court held that the “best interests” standard that was used in grandparent visitation cases was unconstitutional. The court further held that the parents had a constitutional right to raise their children without any court interference. The New Jersey Supreme Court did not declare the current version of the grandparent statute unconstitutional. Instead the court established a legal test/process that must be followed in all grandparent visitation cases.

8. What is the three part test/process that must be applied in all grandparent cases?

The three part test/process is as follows:

a. In every grandparent visitation case, the grandparents have the burden to prove by a preponderance of the evidence that visitation is necessary to avoid any harm to the children.

b. If the court finds that there is no potential for harm to the children, then the court will request that the parties offer a visitation schedule. If the grandparents are satisfied with the schedule, then that will be the end of any court inquires.

c. If the court does not accept the schedule, then the court will then impose it’s own schedule. The court will approve a schedule that it is based on the children’s best interests and on the statutory factors in the Grandparent Visitation Statute N.J.S.A. 9:27-1.

9. What are some other important cases that address grandparent visitation rights?

A. Mizrahi v. Cannon,  375 N.J. Super. 221 (App. Div. 2005).

Another interesting case is Mizrahi v. Cannon, 375 N.J. Super. 221 (App. Div. 2005).  Here, the Appellate Division denied the denied the grandparents their visitation rights. The grandchild was only 3 years old. The Appellate Division denied visitation on the grounds that the grandparent’s failed to prove that the child would suffer harm if there were no visitation. The Mizrahi court held that the the grandparents have a burden to prove that the child will suffer harm if there is no visitation. Moreover, the court held that the mere allegations that the child would suffer from a loss of potential happy memories of sharing time with his grandparents did not constitute identifiable harm under the three-part Moriarity test.

B. Daniels v. Daniels, 381 N.J. Super. 286 (App. Div. 2005).

Another illustrative case is Daniels v. Daniels, 381 N.J. 286 (App. Div. 2005).  Here, the Appellate Division denied any grandparent visitation. The grandchildren were 6 and 3 years of age. The grandmother had a significant track record of having visitation with the children and she had a very loving relationship with them. Nonetheless, the court still denied any grandparent visitation. The court noted that even though the grandmother had a loving relationship with the children, she still could not prove that there was an identifiable harm to the children if they did not have grandparent visitation(s).

10. What is the current standard of law that a family court uses to rule on grandparent visitation rights?

A interesting case is Rente v. Rente, 390 N.J. Super. 487 (App. Div. 2007). The Appellate Division reversed the Family Part’s grant of unsupervised weekly visitation to the paternal grandparents under the grandparent visitation statute, N.J.S.A. 9:2-7.1. Here,  the grandparents’ sole proof was that they babysat the toddler on occasion, and the mother was amenable to supervised visitation, possibly once month. On appeal, the court held that grandparents’ proofs were insufficient to satisfy the high burden of proof of harm required under Moriarty v.  Bradt to rebut the presumption in favor of parental decision making. The Appellate Court further held that the family court did not make sufficient findings,  and that the record was devoid of evidence to support a finding, that visitation was necessary and the monthly supervised visitation schedule offered by the mother as inadequate to avoid harm to the child.

Here, the issue in this case was whether the trial court erred in granting the grandparents visitation under New Jersey’s Grandparent Visitation Statute (GVS), N.J.S.A. 9:2-7.1, in light of the mother’s objections to visitation and the existing visitation schedule. The Appellate Division held that the trial court erred in granting the grandparents visitation as they had failed to satisfy the burdens under Moriarty v. Bradt, 177 N.J. 84 (2003), which requires a showing that substantial harm will come to a child unless visitation occurs. The only state interest that may overcome the presumption in favor of a parent’s decision to deny grandparent visitation is “the avoidance of harm to the child’s. Only after the potential for harm has been shown and the presumption has been overcome, may the court order a visitation schedule that is in the best interests of the child based on the statutory factors. The family court failed to analyze the facts under this rubric. Furthermore, the family court erroneously relied on a court-appointed expert’s net opinion that found that the grandparents provided the most stable environment for the child without giving the mother an opportunity to retain her own expert or even cross-examine the expert. Thus, the family court improperly applied a best interests test. Therefore, the grandparents were not entitled to visitation.

11. Can grandparents obtain custody of the children if a custodial parent should die?

It is not uncommon for a nasty custody battle to arise between the natural parent and the grandparents if the custodial parent should die. In the case of Watkins v. Nelson, 163 N.J. 235 (2000), the New Jersey Supreme Court held that disputes should be settled in favor of the natural parent unless the third party is a “psychological parent,” a biological parent is unfit, or if exceptional circumstances exist. There is a presumption of custody in favor of the parent.

In the Watkins case, the father began seeking custody shortly after the mother died in a car accident twelve days father giving birth. The grandparents never alleged that the father was unfit parent, but only that they had become psychological parents to the child, who had been living with them since the mother’s death. A crucial issue decided by the Supreme Court was the standard to be applied, the best interest of the child test versus the stand of termination of parental rights. The court ruled that upon the death of the custodial parent, in an action for guardianship of a child, a presumption exists in favor of the surviving biological parent. The presumption can be rebutted by proof of gross misconduct, abandonment, unfitness, or the existence of exceptional circumstances, but not by the simple application of the best interest test.