Visitation: A Right of Grandparents?

Most of us have fond memories of growing up surrounded by loving, doting and often, overly indulgent grandparents. In most cultures, grandparents play a major role in the social, moral and cultural development of their grandchildren. In many societies, the "elders" of a family are essential in providing advice, guidance and mentoring in the rearing of children. Unfortunately, when death or divorce occurs in a family, extended family member ties sometimes also break down. Particularly in a divorce setting, a spouse who once embraced his or her in-laws as important role models and positive influences for his or her children, may quickly turn against them as being "on the side" of the estranged or deceased spouse. Frequently, one spouse engaged in a nasty legal battle becomes blinded by the nearsightedness of often all-consuming destructive feelings for the other, and is unable to remember the past, appreciate the present or foresee the future benefit of grandparents remaining in the lives of his or her child. When divorce or the death of one parent occurs, grandparents, perceived to be on one side of the battle line, often find themselves completely cut out of the lives of their grandchildren.

New Jersey traditionally has been at the forefront of protecting the rights of grandparents. For decades, laws have existed in this State, in one form or another, permitting grandparents to pursue legal action to seek visitation with their grandchildren. The New Jersey grandparent visitation statute in its current form, N.J.S.A. 9:2-7.1, provides:

9:2-7.1. Visitation Rights for Grandparents or Siblings

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.

When interpreting and applying the Statute, New Jersey courts have been careful to weigh the rights of grandparents against the greater rights of parents to raise their children as they see fit and to ensure parents continuing freedom to make decisions concerning their children's welfare. As set forth in paragraph (a) of the Statute, the burden clearly lies with the grandparents who are seeking visitation, to prove beyond a preponderance of the evidence (generally defined as the evidence weighing slightly more in favor of one party than the other), that it is in the best interest of the children to grant the visitation.

Unfortunately, in recent years, courts in this State have eroded the spirit, intent and effectiveness of the Statute. Although many challenges to the constitutionality of the statute have been unsuccessful, New Jersey appellate courts have found in several inst ances that the Statute has been unconstitutionally applied, and either have reversed or limited grandparent visitation orders. The strength of the Statute has been further weakened by the recent strict requirement of courts that grandparents make a strong showing under subsection b (6) of the Statute, that they have made substantial efforts to mend a damaged relationship with the parents and to resolve the visitation issues directly with the parents before resorting to court intervention. Finally, our appellate courts have further diluted the effectiveness of the Statute by reversing court decisions which establish visitation schedules which have been deemed to be too expansive for grandparents. Despite the history and well placed intent of the Statute, the legal trend in New Jersey has been to chip away, in dramatic fashion, the rights of grandparents in divorce and death situations. This special relationship, that of grandparent and grandchild, should be preserved. Legal trends change, and good attorneys can make the difference.