New Jersey Divorce Lawyer Blog
When a Grandparent Visitation case arises it is often following a significant family crisis, such as a divorce, change in child custody, argument between parent and child, or a death in the family. No matter what the cause is, often one or both parents decides that it is not a good idea for the grandparent to spend time with his or her grandchild. This lack of visitation may be difficult for all of the parties involved in the family dispute, which is when the courts become involved. As is the case with most legal issues, if the parties can come to a visitation agreement on their own, the process is much simpler. However, in some cases strained relationships between the child’s parents and the grandparent can make it impossible for the parties to come to their own agreement. In those cases, the New Jersey law may allow the grandparent the ability to obtain a court order allowing them time to visit with their grandchild.
VISITATION RIGHTS FOR GRANDPARENTS
Overview Of N.J.S.A. 9:2-7.1
New Jersey Law codifies the rights of a grandparent to child visitation in N.J.S.A. 9:2-7.1, titled “Visitation Rights for Grandparents, Siblings.” The grandparent may apply to the New Jersey Court for visitation with a grandchild if he or she can show that it is in the “best interest of the child” to do so. The law outlines eight factors that the court will take into account in determining whether to award grandparent visitation. The statute also makes it clear that if the grandparent was ever the primary caretaker of the grandchild, it will assume that it is in the best interest of the child to have visitation with the grandparent.
Limitations To Grandparent Visitation – Moriarty v. Brandt
If you are a parent who is concerned that a judge may legally require your children to visit with their grandparent, you are not alone. The 2003 New Jersey Supreme Court case of Moriarty v. Brandt addressed the issue of whether the Visitation Rights for Grandparents statute (N.J.S.A 9:2-7.1) infringed upon the parents right to make decisions in the interest of their own children. The court found that the visitation statute did infringe upon the rights of the parents. The Moriarty court stated that there is a presumption that parents know what is in the best interest of the child, even if that means not allowing visitation with their grandparents. The Court in Moriarty therefore added an additional requirement for compelling grandparent visitation: showing that visiting with the grandparent is “necessary to avoid harm to the child.”
The Process Of Obtaining Grandparent Visitation
A grandparent will begin the legal process of obtaining a court order for visitation by filing an application with the New Jersey Superior Court in the county in which the child resides. After the parents of the grandchild in question are given notice of the application, the court will conduct a hearing. The parties may need to present evidence showing that visitation is or is not necessary to avoid harm to the child. Once the judge is satisfied with whether or not it will award visitation, the judge will proceed to creating a visitation schedule, if applicable.
What Does This Mean For My Case?
The New Jersey courts are charged with ensuring that the decisions being made are in the best interest of the child, while also respecting the rights of the parents and the grandparents. Since family relationships are complicated, and these types of cases are very fact-specific, there is not a “one size fits all” approach to grandparent visitation. If you have any questions about a grandparent visitation issue, you should speak with an attorney. Please call the Law Office of Peter Van Aulen for a free initial consultation to discuss the specifics of your case.
SOURCES
Moriarty v. Brandt, 177 N.J. 84 (2003)
N.J.S.A. 9:2-7.1
