The issue of grandparent visitation arises in many contexts; however, at its most basic level, the rights of grandparents to have visitation with their grandchildren becomes problematic when the custodial parent denies access to the child, for whatever reason. While, at times, the grandparent's role in the child's life, prior to the denial of visitation, is profound, due to any number of disagreements between the child's parents or the parent and the grandchild, the grandparent's involvement may cease. At that point, when the parents will not allow the grandparent access to the child, the grandparent's options are limited to seeking judicial intervention. Unfortunately, the road to gaining visitation rights for a grandparent is often quite arduous; however, no one can doubt that the benefits of a successful challenge, i.e. the ability to foster a relationship with one's grandchild, can make the difficult journey worthwhile in the end.
The law in New Jersey on grandparent's rights to visitation is currently evolving. Pursuant to N.J.S.A. 9:2-7.1, a grandparent has the right to make an application for an order of visitation and, upon such an application, will have the burden to prove by the preponderance of the evidence that the visitation is in the best interests of the child. However, the Courts have determined that it is insufficient to merely show that the visitation is in the best interests of the child, based upon the fact that a "dispute between a fit custodial parent and the child's grandparent is not a contest between equals," such that "the best interest standard, which is the tie breaker between fit parents, is inapplicable when a fit parent is in a struggle for custody with a third party." Moriarty v. Bradt, 177 N.J. 84, 116 (2003). As such, while the statute indicates that a best interests of the child standard is to be used, the Courts have imposed a requirement that the grandparents prove that the visitation is necessary to avoid harm to the child.
In making this determination, the Court is governed by a review of eight (8) statutory factors, as follows: (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.
However, despite grandparents being given the right to seek visitation, they must tread lightly. "Before engaging the courts, grandparents should be obligated to make substantial efforts at repairing the breach and, in addition, litigation ordinarily should not be threatened before visitation has been denied with finality. If litigation becomes necessary because the parent or parents have persistently resisted the grandparents' respectful and patient overtures, it must be conducted with restraint." Wilde v. Wilde, 341 N.J. Super. 381, 397 (App. Div. 2001).
Recently, however, there has been some movement, both legislatively and judicially, with regard to grandparent's visitation rights. Unfortunately, while court rulings such as those made in R.K. and A.K. v. D.L., Jr. seem to make progress towards expanding a grandparent's right to seek visitation, a bill pending before the New Jersey Legislature would further hinder such rights of a grandparent by formally codifying the "harm to the child" standard set forth in the court's jurisprudence, as opposed to strengthening a grandparent's rights to visitation.
Although there is no doubt that courts must protect the rights of a parent in making decisions in their child's best interests, it is hard to understand how creating barriers to grandparents by requiring that they prove that an actual harm will result to the child by the lack of visitation, as opposed to viewing the matter in terms of the benefits that may accrue to the child, serves the court's broader goal and purpose as ensuring the child's best interests are preserved through their parens patriae jurisdiction.
Regardless, the ever expanding and evolving jurisprudence relating to grandparent's visitation not only proves interesting within the realm of legal theory, but it further underscores the importance of having the help of an experienced family law attorney in making an application to a court for the right to visit a grandchild.