When grandparents are denied an opportunity to visit their grandchildren, a conflict is bound to arise. On one hand, a parent has a right to decide how his or her child will be raised. On the other hand, removing a grandparent from a child’s life could potentially harm the child. In New Jersey, we have a statute that governs the rights of parents and grandparents in these situations, and two important court rulings have clarified the way in which the statute is applied. If you are involved in a conflict over visitation, you should speak to a family law attorney who can explain how New Jersey’s statute applies to your case.
The New Jersey legislature passed a law to address problems that arise when a parent forbids a grandparent from interacting with a grandchild. The law sets out a process by which grandparents can apply for visitation rights and lists eight factors that must be considered in evaluating the grandparent’s application for visitation. They include the relationship of the grandparent with the child, how the grandparent gets along with the child’s parents or the person who has custody of the child, and the length of the period since when the grandparent has spent time with the child. Other factors extend to considering what impact the grandparent visitation may have on the relationship of the child with his or her parents or the individual with custody, the time-sharing arrangement of the parents, the motive of the grandparent in seeking visitation, any record of the grandparent mistreating the child, and any other information that may seem relevant to the court.
According to the statute’s wording, if a grandparent can prove that visitation is “in the best interests of the child,” he or she may be allowed to have visitation with the grandchild. The statute also says that if a grandparent has ever been the child’s “primary caretaker,” visitation is presumed to be in the child’s best interests.
Although the statute seems straightforward, two court cases have altered the way in which the law is applied. A U.S. Supreme Court case called Troxel v. Granville recognized a parent’s constitutional right to make decisions regarding how his or her child is raised, and whom the child associates with. This ruling inferred that New Jersey’s “best interest of the child” standard of judgment was too lenient, since it did not favor the rights of the parent strongly enough.
Three years later, a New Jersey Supreme Court case called Moriarty v. Bradt further limited the way in which the law can be applied. The Moriarty decision said that the parental right to make child-rearing decisions will not be disrupted unless the child’s health or well-being is at stake. This ruling stripped away the “best interest of the child” standard and substituted a tougher standard that requires grandparents to prove that without visitation the child will suffer from harm. The ruling also stated that the potential for harm must be shown by evidence. Merely asserting that “the child will miss his or her grandparents” is not enough.
After the Moriarty ruling, the statute’s eight factors listed above are still used, but the burden of proof is now much higher, and that burden has shifted squarely to the grandparent. Since Moriarty, there is a strong presumption that parents know what is best for the child. Therefore, grandparents may need to provide testimony and evidence about their relationship with the child. The grandparents may also need testimony from an expert who can prove that the grandchild may suffer psychological harm if the grandparent is cut out of the child’s life.
Visitation rights are an important matter for all sides involved. If you are seeking visitation rights, or if you are trying to restrict someone from seeing your child, you should talk to a New Jersey attorney who can explain your rights. The experienced child custody attorneys at Goldstein Law Group can help you understand your child visitation case. Call 732-967-6777, or use the contact link on this page to request a consultation.
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