Grandparent Visitation - The 2-Step Analysis

Every day, grandparents are enlisted to help care for their young grandchildren while the parents are at work. Often, grandparents end up caring for their young grandchildren for most (if not the entirety) of the time the parents are working. For most grandparents, it's a pleasure and the best job in the world to help care for the grandchildren while the parents are at work. And for most working parents, it's a blessing to have this help, especially given the cost of childcare today.


But what happens if the parents get divorced or if one parent dies, and thereafter, the other parent refuses to permit any further contact between the other set of grandparents and the grandchildren? Does it matter that those grandparents took care of the grandchildren 4-5 days per week while the parents were together or while their child (the deceased parent) was still alive?


In settings where a grandparent has maintained a longstanding and ongoing relationship with a grandchild, New Jersey's Grandparent and Sibling Visitation Statute[1] ("Grandparent Visitation Act") can be used by a court to override the custodial parent's decision to permit visitation between the grandparent and the grandchild. But the award of grandparent visitation is not a simple court application – the grandparents must pass a 2-step analysis, which imposes a heightened requirement for the grandparent at the 1st step -- simply saying that visitation is in the grandchild’s best interests is insufficient.


Pursuant to the Grandparent Visitation Act, a grandparent seeking visitation must first show the court that denying their visitation with the grandchild would be harmful to the grandchild – meaning that the grandparent must provide the court with specific details of the type of emotional harm the grandchild will suffer if the visitation is not granted. The court can only consider the 2nd prong in the analysis if, and only if the grandparent can provide the court with specific details as to the particular harm the grandchild will suffer if kept from the grandparents.

Most grandparents who file pro se applications for grandparent visitation lose because they simply allege general or conclusory claims of harm. Typically, these pro se applications fail to show the close grandparent/grandchild relationship that previously existed and how the grandchild will suffer a particular harm if kept from the grandparent. This heightened requirement in the 1st prong acts as a gate to prevent those disgruntled grandparents from subjecting parents (and the grandchild himself/herself) to the economic and emotional burden of litigation simply because that parent refuses to let the grandparent have contact with the grandchild. Thus, the court will only address the 2nd prong of the analysis where a grandparent can provide sufficient information to suggest that their grandchild is at risk of suffering harm if the court fails to intervene.


If the grandparent can pass the 1st prong of the analysis, then the court can consider the following best interest factors (the 2nd prong) to determine whether to permit a visitation relationship for the grandparent (and if so, what type of visitation relationship is best for the grandchild):


(1) The relationship between the grandchild and the grandparent;

(2) The relationship between each of the grandchild's parents or the person with whom the grandchild is residing and the grandparent;

(3) The time which has elapsed since the grandchild last had contact with the grandparent;

(4) The effect that such visitation will have on the relationship between the grandchild and the grandchild's parents or the person with whom the grandchild is residing;

(5) If the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the grandchild;

(6) The good faith of the grandparent in filing the grandparent visitation 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 grandchild.


While it may seem harsh and unfair to a grandparent, it is necessary to impose this 2 step process when a court is considering whether to override a parent's decision and permit the grandparent to see and be with their grandchild. Thus, a fit parent's judgment is only to be overridden under limited circumstances (i.e., where a child is potentially at risk of suffering some identifiable harm if the court fails to intervene) and only where the grandparents can overcome their burden of proof in the 1st prong of the analysis.  


If you are dealing with this type of setting as a grandparent or as a parent objecting to the visitation requests by a grandparent, consider scheduling a consultation with one of the divorce & family law attorneys at Diamond & Diamond to help guide you through the process.


[1] N.J.S.A. 9:2-7, et. al.