Recently, a judge I appeared before summed up the status of grandparent visitation in New Jersey. He said if a grandparent wants visitation and the parent says “jump,” the grandparents’ response should be “how high?”
Sad, but true, this is the current sentiment of grandparent rights in New Jersey. A fit parent has a fundamental due process right to the care and nurturance of his or her child. The 14th Amendment of the United States Constitution guarantees this right. Therefore, a fit parent’s ability to grant access to a child is given great weight and deference. However, in New Jersey there is a grandparent visitation statute and a body of case law. These laws seeks to balance a parent’s discretion and the right of a grandparent to a relationship with a grandchild.
The 2003 New Jersey Supreme Court case, Moriarty v. Bradt, set the legal standard which a grandparent visitation application is measured. The burden of proof is on the grandparent. The grandparent must show that by a preponderance of the evidence, visitation is necessary to avoid harm to the child. The grandparent can overcome the presumption in favor of a parent’s decision to disallow visitation if potential harm to the child can be demonstrated. If a grandparent cannot overcome the avoidance of harm standard, the parent’s decision will be afforded deference. Therefore, the grandparent will not have access to their grandchild.
Subsequent cases interpreting Moriarty have held that a grandparent must prove that by denying visitation, a particular, identifiable harm will come to the child. A simple, conclusory statement or allegation of harm is not enough. An example of a particular identifiable harm is if one of the parents has died and the grandparent is the only remaining tie to the deceased. A grandparent acting as a substitute parent for an extended period of time can also create a successful application. Additionally, grandparents have rights when the court finds both parents to be unfit.
When representing a grandparent, and a parent is denying access to a grandchild, I make every effort to repair the relationship. I do not threaten litigation until visitation has been denied with finality. I counsel the grandparent to make respectful and patient attempts with the parent to establish and agree upon a visitation schedule for the grandparent. Only when all else fails, do I resort to filing an application with the Court. However, based on the current status of the law, the outcome may not always go the grandparent’s way.