Grandparent Rights

 

Parental autonomy- that is, the ability to make decisions for one’s child without judgment – has been recognized as a fundamental and deeply embedded right in our culture. The U.S. Supreme Court case Troxel v. Granville, 530 U.S. 57 (2000) memorialized the fact that parents have a fundamental right to rear their children without interference from the state or other persons. Because of this right, the ability for a state or third-party to supersede parental decision-making must be strictly construed.

​

Most states have, however, adopted some form of statutory law that grants a defined class the right to seek visitation over and above the wishes of a fit parent. this must typically be predicated on the purpose to prevent harm or potential harm to the child. New Jersey's Grandparent Visitation Statute is codified as N.J.S.A. 9:2-7.1. The statute allows a grandparent or sibling of a child residing in New Jersey to make an application for visitation. The applicant must prove that the visitation is in the best interest of the child. The statute applies to families that are intact as well as those where separation, death, or divorce have split the family.

 

It is the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best interest of the child. Caselaw in New Jersey, in deference to Troxel, supra., makes clear that the polestar in determining best interest requires a showing of an identifiable harm to the child should visitation not be granted. In the New Jersey Supreme Court case Major v. Maguire, 224 N.J. 1 (2016), the Court addressed the procedure for case management in such applications and for determining whether a grandparent seeking to compel visitation under the statute has made the requisite showing of harm sufficient to withstand dismissal.

 

In making a determination about visitation, the court will consider eight 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.

​