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.