During oral argument of an application seeking grandparent visitation a few years ago, a judge made it clear that if a biological grandparent wants visitation with a minor child, and the parent of that child says “jump,” the grandparents’ are expected to respond with “how high?” Unfortunate as that might be, the rights of grandparents as it relates to custody and parenting time are very much limited in our state. A parent deemed fit and able has a fundamental due process right to the care and nurturance of his or her child. This right is guaranteed by the 14th Amendment of the United States Constitution. Therefore, if a fit parent decides that he or she does not want to permit a biological grandparent access to said child, that decision is given great weight and deference by our Court. However, in New Jersey, there is a grandparent visitation statute and a significant volume of case law that seeks to balance a fit parent’s discretion and the right of a grandparent to have a relationship with his or her grandchild.
The 2003 New Jersey Supreme Court case of Moriarty v. Bradt has established legal precedent upon which a grandparent visitation application is measured. The burden of proof is on the grandparent to show that by a preponderance of the evidence, grandparent visitation is necessary between the grandparent and the child and that the denial of such visitation would irreparably harm a child. If it can be demonstrated that the lack of visitation between the grandparent and the child will result in irreparable harm, the grandparent can overcome the presumption in favor of a parent’s decision to prohibit visitation. If a grandparent cannot overcome this standard, the parent’s decision will be afforded deference and the grandparent’s application to establish visitation may be denied, ultimately leaving that grandparent at the mercy of the biological parents. .
Subsequent cases interpreting Moriarty have held that a grandparent must prove that by denying visitation, a particular, identifiable harm will come to the child. A simple, conclusory statement or allegation of harm is not enough. An example of a particular identifiable harm is if one of the parents has died and the grandparent is the only remaining lineage to the deceased parent. Other situations which may give rise to a successful application by the grandparent may include when the grandparent’s relationship with the child was akin to that of the parent and child parent for an extended period of time, and the grandparent played an active role in the child-rearing process, or where both parents are found to be unfit parents to care for the safety and well-being of the child.
I seldom threaten litigation until visitation has been denied with finality, leaving litigation as the only recourse. I counsel the grandparent to make deliberate and cautious attempts with the parent to establish and agree upon a visitation schedule for the grandparent with the utmost respect for the parents’ right to their child. In instances where we cannot come to an agreement, or we reach an impasse, litigation may be the only resort, and the strategy must be changed in order to proceed through the Court. However, realistically, it is important to realize and understand that succeeding on the issue of grandparent visitation is a difficult and trying task, which is not unique to any matters in which family is brought into the legal arena. In my experience, I have found that it Is most beneficial to approach these particular areas delicately, putting a great amount of focus on repairing the relationship between grandparent and parent, rather than taking a litigious position. It is important to remain open-minded, cooperative and optimistic that a swift resolution can be achieved, which everyone involved can live with comfortably, and one in the best interests of the children involved.