When can Grandparents have Visitation Rights in New Jersey?
Experienced Family Law Attorneys Will Guide you in your Visitation Rights-Related Case
The nuances of divorce are many, and as society has evolved and the types of custodial arrangements have shifted with them, there have been evolutions to divorce law regarding family visits.
When it comes to grandparent visitation, a national precedent was set in 2000 when the United States Supreme Court ruled in Troxel v. Granville (Washington state) that loose and sweeping fundamental grandparent and third-party visitation rights were not in alignment with a parent’s right to decide what is best for their children. Across the country after that decision, many cases sprung up with parents attempting to reverse rulings in which grandparents had been granted legal rights to visitation under state law. It was in 2003 that this issue hit home in New Jersey. In Moriarty v. Bradt, which went to the New Jersey Supreme Court, the Court ruled that because this underlying visitation right could go against a custodial parent’s view of their child’s best interests, it was therefore unconstitutional and not able to continue as it currently stood. The Court introduced that for grandparent visitation rights to be granted by a New Jersey court, the grandparents would have to prove that their absence from the child’s life caused harm to the child; additional factors of a child’s best interest were laid out that grandparents would have to prove were not being met in their absence.
Moriarty v. Bradt spoke to two specific aspects of the standing grandparents’ visitation rights and created a more solid context for applications for visitation rights. According to the New Jersey Grandparents and Siblings Visitation Statute, all grandparents can apply for the visitation of a grandchild in the custody of their own child’s ex-partner. The specifics of what applications would be accepted are what Moriarty v. Bradt outlined.
When can grandparents have visitation rights?
As noted above, two specific clauses of the New Jersey Grandparents and Siblings Visitation Statute were put into place in Moriarty v. Bradt. The primary question taken into consideration is whether the child will be placed in harm’s way by not having a relationship with the grandparents. The grandparent (as applicant or plaintiff for visitation rights) holds the burden of proof to show that their grandchild is in harm’s way by not having visitation with their grandparent. If the applicant cannot meet this burden of proof, the claim will be dropped without even undergoing a plenary hearing.
The second clause addressed in Moriarty v. Bradt involved an inquiry into the circumstances that would allow for a modification in a current visitation agreement. The Court ruled that “grandparent visitation agreements should be subject to a change of circumstances standard only if the agreement is incorporated into an order or judgment and an application to the court is made for ‘modification of a consent order governing grandparent visitation.’” This means that no circumstantial change is required for grandparents to apply for and receive visitation rights. If a grandparent determines that they believe it is just and in the child’s best interests to have visitation rights with their grandparents, they may apply, even if nothing has changed. Of course, they must meet the threshold showing that the child is faced with undue harm through the separation.
What are some key considerations in determining whether grandparents are allowed visitation?
The New Jersey Superior Court: Family Part considers many factors within the umbrella of the two main standards for accepting a visitation rights application. In determining the threshold for harm to the child, some such considerations include whether the child lived with the grandparent, and for how long; whether the grandparent supported the child financially for any part of their life; how active a role the grandparent played in the child’s life, and whether removal of that presence would cause social/emotional or other harm to the child; whether the grandparents are capable of caring for the child during visitation, in terms of their physical capacities, their mental abilities, and the nature of their relationship with the child’s custodial parent.
To ensure that you are well supported while seeking visitation with your grandchild, it is important that you seek the support of a qualified family law attorney.
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If you are considering applying for grandparents’ visitation rights or wondering if you may be granted visitation with your grandchildren, speak with a member of our legal team today to discuss your individual situation and find the answers you are desperately seeking.
The Bronzino Law Firm is committed to providing the best quality representation for residents of Monmouth and Ocean Counties, like Little Silver, Holmdel Township, Rumson, Barnegat, Wall, and Beachwood.
If you are facing a suit for grandparent visitation or if you are a grandparent who has been cut off from your grandchild, contact us for help today at (732) 812-3102.