The Evolution and Regression of Grandparent Visitation Rights in New Jersey

Grandparent Visitation Rights in New Jersey

Grandparents play an important and necessary role in a child’s life, often providing a generous source of love, support and acceptance which complements, rather than conflicts with the role of the parents. In New Jersey, the law implemented by courts when determining the rights of grandparents to enjoy visitation with their grandchildren has both evolved and regressed since the enactment of the Grandparent Visitation Statute in 1971, with subsequent amendments made in 1973, 1987, and 1993, respectively. N.J.S.A. 9:2-7.1. Prior to the enactment of the statute, grandparents had no rights to visitation in New Jersey. With changes in public policy promoting the grandparent-grandchild relationship came recognition of grandparents’ rights and statutory law purporting to protect the same. As the late Justice Morris Pashman aptly observed shortly following the 1973 amendment to the Grandparent Visitation Statute,

[i]t is biological fact that grandparents are bound to their grandchildren by the unbreakable links of heredity. It is common human experience that the concern and interest grandparents take in the welfare of their grandchildren far exceeds anything explicable in purely biological terms. A very special relationship often arises and continues between grandparents and grandchildren. The tensions and conflicts which commonly mar relationships between parents and children are often absent between those very same parents and their grandchildren. Visits with a grandparent are often a precious part of a child’s experience and there are benefits which devolve upon the grandchild from the relationship with his grandparents which he cannot derive from any other relationship. Neither the Legislature nor this Court is blind to human truths which grandparents and grandchildren have always known.

Mimkon v. Ford, 66 N.J. 426, 437 (1975).

Unfortunately, the United States Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), wherein the Supreme Court invalidated a Washington State grandparent visitation statute as unconstitutional, had and continues to have a chilling impact on grandparents’ rights to visitation with their grandchildren in New Jersey.

As this article will illustrate, it was not until such time as New Jersey courts sought to interpret the Supreme Court’s decision in Troxel and apply the same to New Jersey law that grandparent rights were substantially diminished, with a new standard of harm to the child implemented as part of the legal analysis. As will be addressed herein, this new standard was announced by New Jersey trial courts interpreting the Supreme Court’s analysis in Troxel notwithstanding the fact that the Washington State statute looked absolutely nothing like the New Jersey grandparent visitation statute. Unfortunately, this standard continues to be applied by New Jersey trial courts to present day, to the detriment of children and grandparents alike.

As stated above, a grandparent’s right to seek visitation with a grandchild is explicitly addressed pursuant N.J.S.A. 9:2-7.1, the Grandparent Visitation Statute, which states in pertinent part: “A grandparent . . . 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.” The aforementioned statute also provides a series of eight (8) factors for courts to consider when assessing an application for grandparent visitation:

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.

N.J.S.A. 9:2-7(b).

These factors, coupled with basic legal principles involving custody and visitation issues, confirm that, under New Jersey statutory law, a court’s ultimate determination must serve the best interests of the minor child involved. Thus, the statute created an affirmative right for grandparents to request visitation with their grandchildren while also seeking to balance the competing interests of grandparents, parents, and most importantly, the child or children involved. R.T. v. J.E., 277 N.J.Super. 595 (Super. Ct. 1994).

The importance of the grandparent-grandchild relationship became more pronounced and recognized following the enactment of the Grandparent Visitation Statute. This change in climate was due in large part to the rise in family breakups and the increase in life expectancies, with the first major stride in progress involving the enactment of the Grandparent Visitation Statute in 1971, which sought to preserve the many benefits associated with a close and loving grandparent-grandchild relationship, while simultaneously promoting the interests of children and preserving the rights of parents. The statute was subsequently amended in 1973, offering legal standing to grandparents seeking visitation limited to situations where either or both of the child’s parents were deceased, divorced, or living separately from one another. Id. Subsequent amendments made in 1993 removed these conditions and granted legal standing to grandparents, allowing them to seek visitation with their grandchildren even under circumstances where the child remains in an intact family. N.J.S.A. 9:2-7.1 (as amended by L. 1993, c. 161, § 1, effective June 29, 1993). The amended statute both expanded the scope of grandparent visitation rights and removed the requirement that the parent(s) be deceased or divorced. Id.

Although a grandparent’s involvement in a child’s life may be essential to promote his or her well-being and best interest, as with all matters submitted to a court for consideration, grandparent visitation cases are determined on their unique facts and circumstances. Though the statute provides this affirmative right to grandparents, in practice, the same is exceptionally limited under current New Jersey law. Unfortunately, and despite the breath of case law and public policy acknowledging the importance of the grandparent-grandchild relationship, the United States Supreme Court’s determination in Troxel, analyzing a statute enacted in Washington State, resulted in trial courts in New Jersey ignoring the robust New Jersey Grandparent Visitation Statute and its eight (8) explicitly delineated factors, to instead implement a legally unsupported standard of harm. The resulting decisions made by trial courts and appellate courts reviewing these issues continues to have a chilling effect on New Jersey case law, and the rights of grandparents and their grandchildren.

In Troxel, the Supreme Court of the United States explicitly addressed the constitutionality of a non-parental visitation statute that had been enacted in Washington State. Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). Troxel dealt with an unmarried couple from Washington State with two (2) daughters. Id. Shortly following their separation, the children’s father committed suicide. Id. Their paternal grandparents, who exercised consistent and regular contact with the children throughout the separation and following the death of their son, sought visitation with their grandchildren under the then-existing Washington State statute. Id. At that time, the statute permitted any person to petition the court for visitation at any time, which could be granted by the court in the best interests of the child. Id. The statute was extremely broad and did not have one factor for trial courts to consider and apply. Id. The trial court in Troxel granted the grandparents’ request for visitation, and an appeal ensued thereafter. Id. The Supreme Court held that the “breathtakingly broad” statute intruded upon the mother’s rights, and found the statute impermissibly overbroad “because it permitted any person to petition for visitation and permitted a court to decide that visitation was in a child’s best interest . . . [T]he statute failed to accord any special weight to a parent’s decision regarding visitation and, in effect, the statute created a presumption in favor of visitation and placed the burden of disproving visitation on the fit parent.” Id. See also Moriarty v. Bradt, 177 N.J. 84, 88 (2003).

The Troxel Court ultimately determined that a parent’s fundamental right to due process must be protected, with any non-parental visitation statute weighing the parent’s decision regarding visitation, and providing that parent the presumption that he or she assumably acts in the best interests of the child involved. Id. The Court further opined that a state may only interfere with the right of a parent to rear their children only under circumstances where the same would prevent harm, or potential harm, to the child. Id. Notably, the Supreme Court refrained from commenting on the issue of whether all non-parental visitation statutes violate a parent’s due process rights, and instead stated that this decision was based exclusively upon the “breathtakingly broad” Washington State statute. Id. Notably, the Supreme Court’s application of the “harm” standard applied exclusively to the Washington State factorless statute. Id.

The constitutionality of the New Jersey Grandparent Visitation Statute was directly challenged approximately one (1) year following the Court’s determination in Troxel in the matter of Wilde v. Wilde, 341 N.J. Super. 381, 386 (App. Div. 2001). In Wilde, the parties were married, with two (2) children born of their relationship. Id. The children’s father committed suicide at the family home. Id. The children’s paternal grandparents enjoyed a close relationship with the children during the marriage, and for a brief period of time following their son’s death. However, the children’s mother became increasingly distant from the grandparents following her husband’s death. Id. The grandparents ultimately filed suit within one (1) year of their son’s death seeking visitation with the grandchildren. The trial court ultimately held that the Troxel holding did not apply to the New Jersey grandparent visitation statute, asserting that the New Jersey statute was not “breathtakingly broad,” and thus constitutional. Id. The mother appealed the court’s decision. On appeal, the court determined that the statute, as applied in Wilde, was unconstitutional, finding that the grandparents’ suit violated core principles necessary to protect a parent’s substantive due process rights: “We hold that the [Grandparent Visitation Statute] is unconstitutional as applied to the circumstances of this case.” Id. at 28 (emphasis added).

Utilizing the plurality opinion in Troxel as the starting point of its analysis, the Appellate Division in Wilde opined that grandparents should be obligated to make substantial efforts at repairing the breach in the relationship between themselves and the parent. Id. Litigation should not be threatened before visitation has been denied, with finality. Id. In the event litigation is ultimately necessary because the parent has consistently resisted the grandparents respectful and patient overtures, it must be conducted with restraint, with grandparents refraining from engaging in any conduct which demeans, denounces or otherwise impugning the parent’s character. Id. The court in Wilde was troubled at what it deemed a prompt suit filed by the grandparents absent any attempt made to resolve disputes with the children’s mother. Id.  Further, the court found the grandparents’ acted without restraint throughout the litigation, calling the children’s mother a liar, slanderer and spendthrift who forced her husband, their son, to overwork – a particularly hurtful allegation considering the nature of her husband’s death. Id.

The issue of grandparent visitation was revisited approximately three (3) years following the court’s determination in Wilde in the matter of Moriarty v. Bradt, 177 N.J. 84, 88 (2003). In Moriarty, the trial court entered an Order codifying an agreement reached between the parents during the pendency of their divorce litigation and pending a plenary hearing on the issue of grandparent visitation. Id. The Order explicitly provided for visitation between the two (2) children born of the marriage and their maternal grandparents. Id. The Order also provided the children’s father with custody of the children as their mother after their mother was hospitalized for illicit substance abuse. Id. Following the plenary hearing, the trial court granted the children’s father sole legal custody, with the mother exercising supervised parenting time in the presence of the grandparents most weekends until such time as the supervision requirement was lifted. Id. Both parents remarried approximately one (1) year later, in 1994, with the maternal grandparents continuing to enjoy frequent and consistent access to their grandchildren during their daughter’s court ordered parenting time. Id. When children’s mother died in 1999 from a drug overdose, the grandparents filed emergent applications with the trial court for visitation, among other relief. Id. The maternal grandparents and father subsequently entered into a temporary grandparent visitation agreement pending the plenary hearing scheduled by the trial court. Id.

Thereafter, in June 2000, the children’s father filed an application for summary judgment with the trial court, seeking to deny the grandparents’ pending application in light of the Supreme Court’s holding in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) wherein the Court invalidated the then-existing factorless Washington State grandparent visitation statute. The trial court denied the father’s application and, following a plenary hearing on the issue of grandparent visitation, granted the grandparents’ request and set a visitation schedule. Moriarty, 177 N.J. at 94. In arriving at its decision, the trial court relied upon the grandparents’ expert who opined that such visitation was “to protect the children from the harm that would befall them if they were alienated from their grandparents.” Id.

The father appealed the trial court’s determination, resulting in the Appellate Division reversing the trial court’s decision in light of Troxel and remanding the matter for implementation of the schedule previously approved by the father. Id. Per the Appellate Division, “[i]nterference with [father’s] parental decision to afford the limited visitation offered was constitutionally impermissible.” Id. The maternal grandparents successfully petitioned the Supreme Court of New Jersey and the Appellate Division’s holding was reversed, with the trial court decision reinstated. Id. In reaching its decision, the New Jersey Supreme Court opined that

The emotional attachments between grandparents and grandchildren have been described as unique in that the relationship is exempt from the psycho-emotional intensity and responsibility that exists in parent/child relationships. The love, nurturance, and acceptance which grandchildren have found in the grandparent/grandchild relationship “confers a natural form of social immunity on children that they cannot get from any other person or institution.”

Id.

The Court further noted that, “in the absence of a grandparent/grandchild relationship, children experience a deprivation of nurturance, support and emotional security . . . [T]he complete emotional well-being of children requires that they have a direct, and not merely derived, link with their grandparents.” Id. Unfortunately, the Court’s holding in Moriarty marked the height of grandparent visitation rights in New Jersey since the enactment of the Grandparent Visitation Statute in 1971 and following the United States Supreme Court’s decision in Troxel.

Case-law interpretation of the Grandparent Visitation Statute was subsequently readdressed by the Supreme Court of New Jersey in Major v. Maguire, 224 N.J. 1 (2016). In Major, children’s parents separated approximately two (2) years following the birth of their daughter, after the father was diagnosed with cancer. Id. Prior to the parties’ separation, the paternal grandparents spent time with the children approximately twice per month, which increased to every weekend while the children were in their father’s care, and more frequently as his health declined, until such time as his death in February 2013. Id. Despite requests made by the grandparents, the children’s mother limited their contact with the children significantly following her husband’s death, requiring that they seek relief via formal application to the trial court. Id. The trial court ultimately concluded that the evidence presented by the grandparents “failed to demonstrate a particularized harm to the child in the absence of grandparent visitation.” Id. The court further determined that the complaint was premature as “there was no showing that the [mother] had denied visitation with finality after efforts to resolve the matter.” Id.

The grandparents appealed the trial court’s determination, and the Appellate Division affirmed the lower courts ruling. The grandparents subsequently petitioned the Supreme Court of New Jersey which reversed both the trial court and Appellate Division’s dismissals, and instructed the trial court to re-examine the grandparent’s complaint for visitation in light of governing statutory and case-law precedent. Id. In so deciding, the Supreme Court found that the grandparents alleged “in detail their involvement in their granddaughter’s life from birth and contended that their alienation from the child will cause her harm. Id. Based on these allegations, the [grandparents] established  a prima facie showing of harm to the child at the pleading stage, as required by Moriarty.” Id. The Supreme Court thus reversed and remanded the Appellate Division and trial court’s dismissals of the grandparents’ initial complaint for visitation because the Court found evidence of harm that it directed the trial court to consider. As a result, the finding of harm now is a fixture in New Jersey law when courts analyze grandparent visitation. Unfortunately, this is true as a result of our courts analyzing Troxel and the statute that was woefully inferior to New Jersey’s eight (8) factor statute.

Though the grandparent-grandchild relationship is unique and recognized by New Jersey statutory law, grandparent rights to visitation are limited, not by statute, but the misapplication of Troxel and its impact on New Jersey grandparent visitation law. A cursory review of the history of grandparent rights to visitation in New Jersey confirms that, following the enactment of the Grandparent Visitation Statute in 1971, these relationships were coveted and promoted by the law as then-established. The unfortunate reality remains that the United States Supreme Court’s holding in Troxel, addressing an entirely incomparable, Washington State statute, has infringed upon the rights of grandparents to enjoy visitation with their grandchildren in New Jersey. The burden of proof is now on the grandparent to show “harm,” which must be met by a preponderance of the evidence, not by virtue of the New Jersey Grandparent Visitation Statute, but instead due to the misapplication of New Jersey statutory law. See Moriarty, 177 N.J. at 88. See also Major, 224 N.J. at 1.

This burden may be overcome if a particular, identifiable harm to the child can be demonstrated. Id. However, assuming the grandparent is unable to make this showing, current case-law precedent requires that the parent’s decision be afforded considerable deference, which may require a grandparent to accommodate every whim and outlandish demand of a parent or risk having no contact with the child. Suffice it to say, the current state of the law represents a far cry from the legislative intent, premised upon strong public policy seeking to promote and protect the coveted grandparent-grandchild relationship. It is important that judges, attorneys, and lawmakers each work together, and collaboratively, to fulfill the purpose of the Grandparent Visitation Statute as intended and return to the standard as explicitly enunciated therein. Until such time as the intent of the statute is honored, grandparents will continue to be denied rightful and necessary contact with their grandchildren, and children will continue to suffer the loss of such a momentous and familial relationship.

By: Jeralyn L. Lawrence, Esq.