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Grandparent Visitation Rights in NJ

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Grandparent Visitation NJ Statute

On January 12, 2016 in Major v. Maguire, the NJ Supreme Court addressed a case regarding the Grandparent visitation rights in NJ. N.J.S.A. 9:2-7.1. The plaintiffs, represented by counsel, commenced an action under the statue alleging their involvement in their granddaughter’s life from birth and contended that their alienation from the child would cause her harm.

The defendant, represented by counsel argued that the plaintiffs had failed to establish a prima facie showing of harm to the child in the absence of visitation, as required by Moriarty v. Bradt, 177 N.J. 84 (2003), cert. denied, 540 U.S. 1177 (2004), and informally moved for dismissal of the complaint with prejudice.

The trial court stated that the complaint failed to make the necessary showing of harm to the child in the absence of grandparent visitation and found the complaint to be premature because there was no showing that the defendant had denied visitation with finality after efforts to resolve the matter. The court dismissed the complaint.

On appeal the Appellate Division reversed finding that the trial court should have denied defendant’s motion to dismiss and given plaintiffs the opportunity to satisfy their burden of proving harm, invoking the procedural guidelines set forth in R.K. v. D.L., 434 N.J. Super. 113 (App. Div. 2014), and concluded that the trial court’s approach was inconsistent with governing statutory and case law. The panel remanded to the trial court with directions to re-examine the complaint under R.K. This Court granted certification to the Supreme Court. 218 N.J. 530 (2015). Under N.J.S.A 2:12-4., Certification to the Supreme Court is granted “only if the appeal presents a question of general public importance which has not been but should be settled by the Supreme Court or is similar to a question presented on another appeal to the Supreme Court.”

This issue in this case, grandparent visitation rights in NJ, is relevant to many families and thus was granted certification. Grandparent Visitation NJ Statute, N.J.S.A. 9:2-7.1 , under which the action was commenced, was signed into law in 1972 and twice amended. Factors considered by the Court in visitation include:

a. A grandparent or any sibling of a child residing in this State may make application before the Superior Court, in accordance with the Rules of Court, for an order for visitation. It shall be the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best interests of the child.

b. In making a determination on an application filed pursuant to this section, the court shall consider the following factors:
(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.

c. With regard to any application made pursuant to this section, it shall be prima facie evidence that visitation is in the child’s best interest if the applicant had, in the past, been a full-time caretaker for the child.

Each case involving grandparent visitation rights in NJ is unique and requires detailed analysis of the surrounding circumstances.

 

LAWS ON CHILD RELOCATION IN NEW JERSEY

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nj child relocation lawsDuring or after divorce parents often find themselves facing new questions regarding their minor children. In New Jersey, a custodial parent who wishes to move out of state with their child must have a Court Order or the written consent of the other parent. Child Relocation in New Jersey can become more complex if the noncustodial parent does not agree to the move, and the Court must decide whether the relocating parent can leave the state. If a non-custodial parent wants to move out of the state there are no laws preventing it.

In the 2001 case of Bauers v. Lewis, 167 N.J. 91 (2001) the New Jersey Supreme Court held that the custodial parent seeking to relocate the child must prove good faith and that his or her request to move is in the best interest of the child. The Court established various factors to consider in determining whether to grant the custodial parent’s application to relocate a child if the non-custodial parent objects:

  1. Reasons given for the move;
  2. Reasons given for the opposition;
  3. Past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move;
  4. Whether the child will receive educational, health and leisure opportunities at least equal to what is available here;
  5. Any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location;
  6. Whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child;
  7. Likelihood that the custodial parent will continue to foster the child’s relationship with the noncustodial parent if the move is allowed;
  8. Effect of the move on extended family relationships here and in the new location;
  9. If the child is of age, his or her preference;
  10. Whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent;
  11. Whether the noncustodial parent has the ability to relocate; and
  12. Any other factor bearing on the child’s interest.

After the burden of good faith and best interest of the child is met by the custodial parent, the non-custodial parent must provide evidence that the child’s interest will suffer from the relocation. Visitation alone is not considered proof as to whether the child’s interest will be jeopardized by the move

Parents considering moving within New Jersey must also be aware of whether they will need permission to do so. Generally, a move that is far enough away to necessitate a change in a previously entered Court ordered parenting plan or a mutually agreed-upon schedule will require permission from the non-custodial parent. As with child relocation out of state, unless a consent order is signed by the non-relocating parent, the parent interested in moving must seek the Courts approval through filing a motion.

Child relocation in New Jersey is a complex and emotional issue that many divorced New Jersey parents must face. Due to the complicated and sensitive nature of the matter it is recommended to consult with a New Jersey family law attorney familiar with child relocation.