Are trial court judges in New Jersey looking to expand the rights and the role of grandparents in their grandchildren’s lives?

N.J.S.A. 9:2-7.1 (hereinafter referred to as the “Grandparent Visitation Act”), is a statute in New Jersey that allows Grandparents1 to file an application with the Family Court to compel visitation with their grandchild over the objection of the child’s parent or guardian. In filing that application, the grandparents must establish that the visitation is in the grandchild’s best interest. 

In making a determination as to whether to permit the visitation over the objection of the parent or guardian, the court must consider the following:
(1) the relationship between the child and the grandparent;
(2) the relationship between each of the child’s parents or the person with whom the child is residing, and the grandparent;
(3) the time which has elapsed since the child last had contact with the grandparent;
(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 grandparent in filing the application;
(7) any history of physical, emotional or sexual abuse or neglect by the grandparent; and
(8) any other factor relevant to the best interests of the child.

Dating back to when the Grandparent Visitation Act was first enacted into law, our court system has required grandparents to show that allowing them to visit their grandchild is absolutely necessary to prevent the child from suffering a particular and identifiable harm. In other words, the grandparents must first show the court that: 
(1) denying them their ability to visit their grandchild will harm the child; and 
(2) said harm is so significant that it justifies State intervention in the parent-child relationship.

However, in a recent court case, the door was opened a little wider by the trial court judge whose order granted the paternal grandparents of a 13-year-old child visitation without identifying the particular harm that the child faced if visitation was denied. The parent appealed the trial court judge’s decision and the appellate division agreed with the parent, reasoning that the trial court judge failed to follow the legal standard required to permit the visitation over the parent’s objection.  

By way of background, the maternal and paternal grandparents each helped the parents care for the child for the first 2.5 years of the child’s life – each babysitting approximately 2 times per week. However, after the parties separated and the father filed for divorce2,  the mother refused to permit the paternal grandparents to babysit or even be involved in the child’s life any longer. 

While the trial court judge did not characterize the relationship between the mother and paternal grandparents as a healthy or positive relationship during the marriage, after the divorce matter began, their relationship became hostile -- primarily because the mother viewed the paternal grandparents as having enabled their son’s inappropriate behavior and drug use.  The conflict worsened when the father died during the pendency of the divorce from a drug overdose.  According to the trial court judge, the mother blamed the paternal grandparents for his death.

After their son’s death, the paternal grandparents did not give up on trying to maintain a grandparent-child relationship despite the mother’s decision that same was not in her child’s best interests. If anything, as a result of their son’s death, paternal grandparents felt that their role in the child’s life was now more important than ever. 
Ultimately, the paternal grandparents filed an application with the family court under the Grandparent Visitation Act. As a result, the Family Part judge issued an order granting the grandparents visitation over the objections of the mother – reasoning that the anger the mother held towards the paternal grandparents “prevented her from rationally considering what was in [the child]’s best interests.” Yet, absent from that order was the factual testimony to support the grandparents’ claim that the visitation was necessary to protect the child from suffering a particular and identifiable harm. 

Because the trial court judge took a short cut in granting the relief sought by the grandparents, the appellate division reversed the decision of the court below and sent the matter back to the trial court judge to support the conclusion that the contact between the grandparents and the child was essential in order to prevent the child from suffering harm.  

It appeared that the trial court felt that the grandparents had been active participants in their grandchild’s life and the trial judge was straining the statute and the case law interpreting it to find a way to permit them to remain actively involved in their grandchild’s life despite the position taken by the mother. 

1 The Grandparent Visitation Act also applies to siblings of minor children as well. Only grandparents are referenced in this Blog for clarity purposes, but siblings have the same rights as grandparents under the Grandparent Visitation Act to ask for visitation.

2 The Judgement of Divorce awarded the mother primary legal custody and restricted the father to supervised visitation only because of his drug addiction issues.