N.J.S.A. 9:2-7.1 is the starting point to address grandparent visitation. This statute considers the best interests of the child and provides for an eight-factor test to evaluate the child's best interests. The factors are:
(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.
Visitation rights under the Grandparents Visitation Statute, even on a temporary basis, may not be ordered without the grandparents first establishing a prima facie case of requisite harm to the child. Rente v. Rente, 390 N.J. Super. 487 (App. Div. 2007). The court stated, “Only after the court determines the grandparents’ proofs are sufficient to overcome the presumption in favor of parental decision-making, should it proceed to the next step and direct a visitation schedule.” Id. at 494.
The Grandparent Visitation Statute, N.J.S.A. 9:2-7.1, is inapplicable when the grandparents have no prior relationship with the child. Wilde v. Wilde, 341 N.J. Super 381 (App. Div. 2001). The courts in New Jersey follow the holding of the US Supreme Court in Troxel v. Granville, 120 S.Ct. 2054 (2000), and defer to a parents right to make decisions regarding their children and will not interfere with the right of a fit parent to make decisions for their child. The litigation process itself implicates a parent's constitutional rights and the right of grandparents to haul a parent into court must be circumscribed, especially when fitness is not disputed. Troxel holds that a “fit parent has a fundamental due process right to the care and nurturance of his or her children” without interference from a third party. Moriarity v. Bradt, 177 N.J. 84 (2003). An application for visitation by a third party such as grandparents implicates a parent’s right to privacy and autonomy as guaranteed by the U.S. Constitution.
Grandparents must prove “particular identifiable harm” to a child by a denial of their visitation to overcome the resistance of an adoptive non-relative parent. Mizrahi v. Cannon, 375 N.J. Super. 221 (App. Div. 2005). Such harm must be “harm to the child, not harm to the grandparents.”
Given the complexities involved with Grandparent Visitation, we advise you to contact one of our experienced family law attorneys at 908-735-5161 at Gebhardt & Kiefer today. We handle Grandparent Visitation and family law issues throughout New Jersey.