Grandparent Visitation & Custody

By Peter Van Aulen, Esq.

Under N.J.S.A. 9:2-7.1, a grandparent who is being denied visitation by a parent or guardian of a child can make an application before the Superior Court of New Jersey for an Order of Visitation. It is the burden of the petitioner to prove by the preponderance of the evidence that visitation is in the best interest of the child. According to N.J.S.A. 9:2-7.1, the Court will consider the following factors:

• The child and the petitioner’s relationship.
• The relationship between the child’s parents or the relationship with the person the child is dwelling and the petitioner.
• The period of time that has passed since the child had contact with the petitioner.
• The impact that the visitation will have on the relationship between the child and the child’s parents or the person the child is living with.
• The time sharing arrangement between parents if they are separated or divorced.
• Whether the petitioner filed the application in good faith.
• Does the petitioner have any history of emotional, sexual, physical abuse or neglect?
• Any other factor the Court deems relevant in the best interest of the child.

Under the statute, it is prima facie evidence that visitation is in the child’s best interest if the petitioner had at one time acted as the full-time caretaker of the child.

The New Jersey Supreme Court case reviewed the constitutionality of N.J.S.A 9:2-7.1 in the case of Moriarty v. Brandt, 177 N.J. 84 (2003). The question presented to the Court was whether said statute infringes upon the constitutional rights of the parents. The Court in Moriarty found that there was an unconstitutional encroachment of the parent’s rights to raise their children without intrusion, through the statute’s use of the “best interest” analysis in determining whether a grandparent would have visitation. The Court in Moriarty avoided striking down N.J.S.A. 9:2-7.1 as unconstitutional by finding that said statute requires the grandparents to prove that the visitation with the child was necessary to avoid harm. The Court reasoned that since said statute was an incursion of a fundamental right of parent autonomy it is “subject to strict scrutiny and must be narrowly tailored to advance a compelling state interest”. Id. at 114-115. The Court found that avoiding harm to a child is a compelling state interest. Further, the court stated that when no harm threatens the child’s welfare, “the State lacks a compelling justification for the infringement” on a parent’s right to raise a child without interference. Id. Thus, the Court in Moriarty added the additional requirement of demonstrating that the grandparent visitation was necessary to avoid harm. In 2014, the Appellate Court in the case R.K. v. A.K. established rules based on the Moriarty holding on how Grandparent visitation cases are to be decided by the Courts. The Court in R.K. v. A.K. stated a Judge must first apply the statutory factors of N.J.S.A. 9:2-7.1 to decide whether grandparents have shown a prima facie case justifying visitation. Once a prima facie case has been made, a Judge must decide if the grandparents have met their burden of proving by a preponderance of the evidence that visitation is necessary to avoid harm to the child. Also, the Court stated that grandparents can meet this burden by presenting either factual or expert testimony.

Grandparent cases are very fact sensitive. It is important that an applicant focuses on proving to the Court that visitation with the grandparents is necessary to avoid harm to the child’s welfare, as well answering all of the statutory factors. Call Peter Van Aulen an experienced New Jersey family lawyer today for a consultation 201-845-7400.