Under the Grandparent and Sibling Visitation Act, N.J.S.A. 9:2-7.1 (the Act), and the legal principles set forth in Moriarity v. Bradt, 177 N.J. 84, 118 (2003), courts must undertake a two-step analysis to decide a grandparent's application to visit a grandchild over the objection of a fit parent.
Essentially, the grandparents must first prove that the denial of visitation will harm the child. This is not a best interest analysis that is conducted in regular child custody cases. Rather, the showing of harm to the child is greater than simply what is best for a child.
If the grandparents pass the first part of the test, then the court must conduct an analysis of 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.
The statute also states that if the grandparent(s) had in the past been a full-time caretaker of the child, then it is automatically in the child’s best interests to have visitation.
In a case, the court was presented with a case where the Grandparents had been the supervisor for the father’s parenting time, since the father had serious substance abuse issues. The father ultimately passed away. The Grandparents sought visitation. The trial court looked at the custody agreement between the parents, which had a specific provision that addressed Grandparent Visitation. The parties had agreed to act in the best interests of the children when it came to allowing grandparent visitation if either of them died prior to the children reaching the age of 16. After reviewing the submission of the parties, the court ordered visitation for the Grandparents.
The appeals court disagreed. In fact, the higher court specifically noted that the mother had not waived her constitutional rights by agreeing in the custody agreement to act in the children’s best interests. In fact, the court held that the mother retained the right to act in the children’s best interests, which might very well be a denial of grandparent visitation. The appeals court stressed that absent a showing of a particular, identifiable harm to the children, that the first part of the test had not been met.
Notably, the appeals court remanded this case to the trial court for an evidentiary hearing. Often times there are significant factual disputes in these cases that will lead to the need for a plenary hearing.
If you are a Grandparent seeking visitation or a parent defending against one of these cases, contact the experienced Grandparent Visitation attorneys at LaBletta & Walters. Our experienced litigation attorneys can guide you through each aspect of these case and help to present the best evidence on your behalf.