In common law the answer was “No” because of the constitutional due process rights of parental autonomy. The parental decision was final.
The answer is now a qualified “yes”, under certain circumstances. New Jersey has a statute, N.J.S.N. 9:2-7.1, which has been amended and construed over the years since 1972, which permits an action for visitation by grandparents. The statute is subject to strict scrutiny and is only constitutional if it is narrowly tailored to serve a compelling state interest. The only state interest is “if the child would suffer harm if deprived of contact with his or her grandparents.” This is a very high obstacle to overcome, as there is a presumption of correct parental decision making.
A recent case was decided by the New Jersey Supreme Court on January 12, 2016 in the matter of Major v Maguire, a-110-13 (2016) regarding the statue and interpretation of grandparent’s rights to visitation. In that case the Majors were the grandparents of a granddaughter born to their son Chris and defendant Ms. Maguire, who cohabited with the child between 2007 and 2009. In August 2009 Christ was diagnosed with cancer and four months later separated from Ms. Maguire. Before and during their son’s sickness the grandparents became close to the child, caring for her when she was visiting her father. Chris died in February 2013 and the relationship between the grandparents and mother became antagonistic. The mother soon forbade the grandparents to see the grandchild, which followed with the grandparent’s action to compel visitation.
The trial court dismissed the Complaint based on its finding with little discovery that the Complaint did not show a particularized identified harm to the child. Defendant’s counsel advised the Court that the child was doing well in school and was happy at home with her mother, stepfather and newborn baby brother. The grandparents appealed the Trial Court’s decision and the Appellate Division reversed and remanded the case back to the Trial Court. The Supreme Court then granted Certification, 218 N.J.530 (2015) in order to clarify what must be done.
The Supreme Court then set forth the circumstances and rules which would be required for the grandparents to compel visitation of the grandchild over the objections of competent parents.
In every case where visitation is denied by the parents, the grandparents bear the burden by preponderance of the evidence to prove that visitation is necessary to avoid harm to the child. Preponderance of the endeavor means “more likely than not.”
The evidence may be factual or be presented by an expert. For example, the grandparents may rely upon the death of a parent or the break-up of the child’s home through divorce or separation together with the termination of a long standing relationship between the grandparents and child, with expert testimony assessing the effect of those circumstances to form the basis of a finding of harm to the child.
When the grandparents present a showing of harm to the child, the presumption of parental decision-making is overcome.
When the presumption is overcome by a showing of harm to the child, the parent must offer a visitation schedule. If the schedule is agreed upon that will be the end of the inquiry. If not agreed upon the Court would have to decide upon a visitation schedule based on the application of the statutory factors which include things such as the relationship between the child and grandparents, length of time of last contact, time arrangements that exist between divorced or separated parents, the good faith of the parties, history of abuse or neglect and any other relevant factors to the best interests of the child.
The statute and case law requires that a meticulous, fact specific analysis be made of each case of grandparent visitation in New Jersey.
What happened in the Major’s Case?
In the Major v Maguire case, the Supreme Court found that the Major’s met their burden of proving harm to the granddaughter because 1) the family dispute was prompted by the death of the child’s father. The child’s bond with her father’s side of the family was critically important to her self-esteem and security in the wake of that loss. 2) the grandparents presented evidence that they maintained a close bond with their granddaughter prior to her father’s death and assumed significant care for her during her father’s parenting time and illness.
The Case was remanded back to the Trial Court.
The final result is that a visitation schedule should be offered by Ms. Maguire. If not accepted, the Trial Court would then schedule a to trial to determine how much visitation would be necessary to prevent harm to the child. The bottom line is that while difficult, successful grandparent’s visitation cases are possible.