New Jersey Statute – Grandparent Visitation
According to the Grandparent Visitation statute, N.J.S.A. 9:2-7.1, a grandparent who is deprived of visitation can seek an order of visitation from the court. In order to do so, the statute states that the grandparent must demonstrate that visitation is in the best interest of the grandchild. As a general rule, however, parents have the right to raise their children the way they wish to, without interference. We call this parental autonomy.
Validity of the Grandparent Visitation Statute – Moriarty v. Brandt
To better understand the current status of grandparent visitation in the state, we need to discuss a case called Moriarty v. Maguire. In Moriarty, the court dealt with the apparent clash between the Grandparent Visitation Statute and parental autonomy. The court in Moriarty ruled that in order for a grandparent to gain visitation against a parent’s wishes, the grandparent must show by a preponderance of the evidence that without the visitation the child will face harm.
Grandparent Visitation Litigation – Major v. Maguire
In Major v. Maguire, grandparents Anthony and Suzanne Major sought visitation under the Grandparent Visitation Statute. The Major’s son, Chris Major, was separated from their granddaughter’s mother, Julie Maguire, when he passed away in 2013. During the separation, the Major’s said they had a close relationship with their granddaughter, including weekly or bi-weekly visits, attending dance recitals, and family trips. Suzanne stated that she frequently took care of her granddaughter while Chris was dying, even living with them in the final weeks. Since Chris’s death, the grandparents stated that they have only seen their granddaughter twice for short visits.
The Major’s claim under N.J.S.A. 9:2-7.1, was based on their relationship with the granddaughter, and that not continuing this relationship in the wake of Chris’s death would deny their granddaughter the ability to have a relationship with her paternal side of the family, which would harm her. The trial court disagreed with the grandparents, and dismissed the case without allowing the introduction of expert testimony or discovery to take place. The trial court held that the grandparents did not meet the burden of showing that there would be harm to the child without visitation.
On appeal, the Appellate Division disagreed with the Trial Court. The Supreme Court found that the Major’s claim of a long-term relationship with their grandchild was enough to be given the ability to proceed with the claim for visitation. The Appellate Division held that the lower court should have denied the mother’s motion to dismiss the case and given the grandparents the chance to fulfill their burden of proof and show that without visitation the grandchild would be harmed.
In order to provide the opportunity to prove their case, the court discussed the case of R.K. v. D.L. In R.K., the court laid out a case management system whereby grandparents could make their case for visitation. As applied to Moriarty, the court stated that first the judge should determine whether a case is complex or not. If the case is complex, initial and final case management conferences should be held. If the case is not complex, it may be dismissed without case management conferences. If the grandparent wishes for the case to be considered complex, they may file a “non-conforming complaint” where they will present their case showing harm to the grandchild, addressing the factors mandated by the Grandparent Visitation Statute. The parent will also file a pleading, and the court will then be in a better position to determine whether discovery and expert testimony is required in the case.
The landscape of grandparent rights in NJ is a complex one. If you need assistance with grandparent rights in New Jersey, please call the Law Offices of Peter Van Aulen for a free initial consultation.
Sources
New Jersey Grandparent Visitation Statute – N.J.S.A. 9:2-7.1
Major v. Maguire, A-110074345 (January 12, 2016)
Moriarty v. Brandt, 177 N.J. 84 (2003)
R.K. v. D.L., 434 N.J. Super. 113 (App. Div. 2014)