Do Grandparents Have a Right to Visit with Grandchildren?
Aug 3, 2022 | Written by: | Share
In New Jersey, barring certain criteria set forth below, grandparents do not have a right to visit with their grandchildren. Rather, visitation rests within the sole discretion of the parents, who are deemed to have a constitutional right to determine who should see their child.
During a divorce or following a death, this can often be a very emotional and frustrating issue. It is unfortunately very difficult, in my experience, for grandparents to succeed in obtaining court-ordered visitation with grandchildren. These are very fact-specific inquiries and require a knowledge of the law and facts of each case to provide competent and practical advice.
The Grandparent and Sibling Visitation Statute (GSVS)[i] sets forth eight statutory criteria that a trial court must consider when a grandparent seeks visitation with a grandchild:
(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 that 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 that 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 GSVS also provides: "With regard to any application made pursuant to this section, it shall be prima facie evidence that visitation is in the child's best interest if the applicant had, in the past, been a full-time caretaker for the child."
In the context of a grandparent's application under the GSVS, the NJ Supreme Court has held, "that, in order to overcome the presumption of parental autonomy in the raising of children, grandparents who bring visitation actions under [the GSVS] must prove by a preponderance of the evidence that denial of visitation will harm the child."[ii]. Moreover, the harm to the child must be "a particular identifiable harm, specific to the child."[iii] "Absent a showing that the child will suffer harm if . . . visitation is denied, a trial court may not mandate visitation pursuant to the best[]interests factors of [the GSVS]." "Only after the grandparent vaults the proof-of-harm threshold will the court apply a best [] interests analysis to resolve disputes over visitation details.”[iv]
In a recent unpublished case of D.W. and J.W. v. C.C. and B.W., the grandparents appealed a trial court decision that denied them visitation with their three-year-old grandson, K.W. In that case, K.W. was removed from his parents by the Division of Child Protection and Permanency (DCPP, formerly known as the Division of Youth and Family Services, or DYFS) due to the parents’ substance abuse. The child was nine months old at that time and placed in the care of his grandparents. K.W. lived with his grandparents for approximately two years before he was reunited with his parents. Unfortunately, the parents terminated K.W.’s visits with the grandparents due to competing concerns about how the child should be raised.
The grandparents filed an application in the trial court for parenting time with the child (and his siblings) for one or two weekends per month and summer vacation. After a hearing, the trial judge denied the grandparents’ motion. The trial judge found that the grandparents prevailed in demonstrating that visitation with them was in K.W.’s best interests, however, the judge denied visitation claiming the rift between the parents and grandparents would be “exacerbated by an order mandating the required visitation.” The grandparents appealed.
Ultimately, the Appellate Division remanded for a determination by the trial court of whether the grandparents made a showing of identifiable harm to K.W. by not allowing him to visit them, and if so, whether the statute “best interests” factors favor visitation.
Notably, this decision was rendered on July 27, 2022, some years after the parents terminated the child’s contact with the grandparents. The delay caused by the court proceedings adds another layer of concern to the issues; the longer the child goes without contact with the grandparents, does that exacerbate or alleviate the harm? Does it create a new status quo? These are complex issues and questions.
Given the complexities involved with grandparent visitation, we advise you to contact an experienced family law attorney at Gebhardt & Kiefer if you need assistance with such a matter. We handle grandparent visitation and family law issues throughout New Jersey. Call us at 908-735-5161.
[i] N.J.S.A. 9:2-7.1
[ii] Major v. Maguire 224 N.J. 1, 7 (2016); Moriarty v. Bradt, 177 N.J. 84 (2003)
[iii] Mizrahi v. Cannon, 375 N.J. Super. 221, 234(App. Div. 2005)
[iv] “Slawinski v. Nicholas, 448 N.J. Super. 25, 34 (App. Div. 2016) (citing Moriarty, 177 N.J. at 117).
Diana N. Fredericks, Esq., devotes her practice solely to family law matters. She is a Certified Matrimonial Law Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters in 2015, 2016, 2017, 2018, 2019, 2020 and 2021, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015. Contact Ms. Fredericks for a consultation at 908-735-5161 or via email.
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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.