In 2000, the United States Supreme Court addressed the importance of preserving the grandparent/grandchild relationship which was supported by the majority of child psychologists and custody experts. The New Jersey Supreme Court similarly acknowledged the importance of the grandparent/grandchild relationship. The Supreme Court noted:
“The emotional attachments between grandparent and grandchildren have
been described as unique in that the relationship is exempt from the psycho-
emotional intensity and responsibility that exists in parent/child relationships.
The love, nurturance, and acceptance which grandchildren have found in the
grandparent/grandchild relationship confers a natural form of social immunity
on children that they cannot get from any other person or institution.”
This rationale was also recognized by our State Legislature in setting forth a list of eight factors for a New Jersey Court to review in determining whether it is in the best interests of the child that the grandparent/grandchild relationship be preserved. The major factors to be considered by the Court are the closeness of the relationship between the grandparent and grandchild, and the relationship between the parents and the grandparent.
However, in 2003, the New Jersey Supreme Court also set forth a rationale for a much more strict standard in order for a Court to grant grandparent visitation. The rationale for this stricter standard is that the New Jersey Grandparent Visitation Statute was viewed as “an incursion on the fundamental right (the right to parental autonomy)…and must be narrowly tailored to advance a compelling state interest”. The New Jersey Supreme Court went on to hold that grandparent visitation can only be ordered “when harm is proved and the presumption in favor or a fit parent’s decision making is overcome”. In other words, the prior standard for ordering grandparent visitation (i.e. best interest of the child) was raised to a much more difficult standard to be proved (i.e. proof of harm to the grandchild if no visitation with the grandparents).
Although it could be argued by most loving grandparents that it would be harmful to the grandchild if contact with a grandparent is denied, this conclusory argument is not sufficient to meet this difficult standard. Instead, our Courts require specific proofs by way of factual testimony describing the grandparents’ past interactions with the child and perhaps, expert testimony regarding the harm to the child if visitation is denied.
In recent years, a result of the strict standard for grandparent visitation matters has been that New Jersey Courts have denied grandparent visitation complaints without permitting the grandparents an opportunity to present their case at a full hearing. The limitations on grandparents’ rights were furthered as a result of procedural restrictions on the content of Complaints being filed in cases involving non-divorce litigation. This procedural rule required any such Complaints be filed on a fill-in-the-blank form and the scheduling of the Complaint for summary (prompt) disposition.
Fortunately, on January 13, 2014, the Appellate Division decision in the matter of R.K. and A.K. vs. D.L., Jr. was issued which addressed the unfairness of the procedural rule in grandparent visitation cases. In doing so, the Appellate Court chastised the Family Court’s refusal to consider detailed grandparent visitation Complaints and the Courts’ automatic scheduling of “summary” matters, without discovery and an opportunity for grandparents to be fairly heard.
The Appellate Division has now made it clear that “grandparents seeking to overcome a presumptively valid parental objection to visitation must be afforded the opportunity to gather the evidence necessary to meet this burden of proof”. The Court further noted that “although harm can be established by either factual testimony from a witness or opinion testimony by an expert, the termination of a long-standing relationship between the grandparents and the child, with expert testimony assessing the effect of those circumstances, could form the basis for a finding of harm”.
It is clear from the Appellate Court’s decision that in cases where there has been a long-standing close relationship between grandparent and grandchild, the grandparent is entitled to be heard and if the presumption in favor of the parent is overcome, a grandparent/grandchild visitation schedule will be ordered by the Court.
A lesson to be learned from New Jersey Courts’ handling of grandparent visitation matters is that grandparents must maintain a regular, close relationship with their grandchildren, over a lengthy period of time, in order to prevail in these cases. Also, in the event of divorce, the issue of grandparents’ access to the children could be addressed in the parents’ Marital Settlement Agreement, if both parents are agreeable to including clauses which preserve their parents (i.e. the children’s grandparents) continued relationship with the children.
Barry Chatzinoff, Esquire has been representing South Jersey residents in Matrimonial and Family Law matters for more than 30 years.
Law Office of Barry Chatzinoff, P.C.
120 Haddontowne Road, Cherry Hill, NJ 08034