During the past few years, the issue of grandparent visitation has become something of a hot button issue in New Jersey and across the country. Beginning several years ago, lawmakers across the country began to recognize the benefits of grandparent visitation laws. Grandparent visitation laws are basically laws that allow a grandparent to get a court order allowing them to visit with their grandchild. Certainly, most people would agree that there are obvious benefits to children having a healthy and regular relationship with their grandparents. But the issue emerged in cases where the parents – for any number of reasons – would refuse to allow their child to visit with the grandparents. For example, this situation could present itself when custody was involuntarily transferred to a grandparent and the mother gets custody back; cases where the parents and grandparents have a falling out; cases where the grandparent was acting as a regular babysitter for the child and harmed the child; etc.
Recognizing that it may be in the best interest of the child to continue a relationship with the grandparent despite the parent’s objection, states began passing these grandparent visitation laws. New Jersey, like many other states, essentially had a “best interest of the child” standard. In other words, a grandparent could get court-ordered visitation if they could show that it was in the best interests of the child. One of the problems with this standard is that it interferes with a parent’s constitutional right to raise their child as they see fit. As such, the United States Supreme Court actually weighed in on the question of whether these grandparent visitation laws were constitutional. The Court concluded that they were not.
Following that case, states like New Jersey had to change their law to comport with the Supreme Court’s decision. Presently, N.J.S.A. 9:2-7.1 governs grandparent visitation, but the standard is different. Today, the grandparent’s application for visitation will be denied unless the grandparent can show that denying them visitation will be harmful to the child. That is much tougher to prove, but doable in the right circumstances; for example, cases where the grandparent raised the child for a significant portion of the child’s life. If the grandparent meets this burden, then the parent must propose a visitation schedule. If the grandparent does not accept the proposed schedule, then the Court will determine whether the schedule is in the child’s best interests based upon the statutory factors set forth in N.J.S.A. 9:2-7.1. If visitation is not denied outright, but the grandparents object to the sufficiency of the proposed schedule, the grandparent must show by a preponderance of the evidence that the proposed schedule is inadequate to avoid harm to the child. If the grandparent meets this burden, the Court will then be required to develop a schedule that is in the child’s best interest based upon the statutory factors. Grandparents seeking visitation should establish, at the outset, that there is a significant pre-existing relationship between the grandparent and the grandchild; that there are significant emotional ties between them, and that the child would suffer specific psychological harm from the absence of visitation. Grandparents seeking visitation would benefit from an expert’s report to support their claims.
And this dovetails into the most recent dispute about grandparent visitation. If there is so much that a grandparent must prove, how could they possibly gather all of the necessary evidence? It’s a good question because custody and visitation cases are generally summary actions. That is, one party files a motion, the other party opposes it, the judge has a relatively short hearing and hears evidence, and then there is a ruling. What is generally missing from the process is the opportunity for the grandparent to gather evidence from the parents (i.e. to conduct discovery). Just recently, the New Jersey Supreme Court discussed that very issue and recognized the potential unfairness in depriving the grandparent from discovery. Therefore, held the Court, in grandparent visitation cases the parties may, if needed, conduct limited discovery as approved by the court in order to address the issues germane to the grandparent visitation application.