Oftentimes in typical family life, circumstances unfold between grandparents and their children that result in a "cutting of ties," so to speak, where contact ceases not only with the children, but with grandchildren as well. By that time, grandparents have commonly formed loving ties and bonds with the grandchildren that are at a risk of breaking due to the conflict with the parents. What are a grandparents’ rights to have visitation with the grandchildren in such a situation? The answer can be found in New Jersey’s Grandparent Visitation Statute, N.J.S.A. 9:2-7.1, which imposes a difficult burden upon the grandparents to establish a right to visitation because the grandparent is essentially seeking to intrude upon the overwhelming strength of a parent’s fundamental, constitutional right to raise their children.
The statute sets forth as follows:
a. A grandparent or any sibling of a child residing in this State may make application before the Superior Court, in accordance with the Rules of Court, for an order for visitation. It shall be the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best interests of the child.
b. In making a determination on an application filed pursuant to this section, the court shall consider the following factors:
(1) the relationship between the child and the applicant;
(2) the relationship between each of the child’s parents or the person with whom the child is residing and the applicant;
(3) the time which has elapsed since the child last had contact with the applicant;
(4) the effect that such visitation will have on the relationship between the child and the child’s parents or the person with whom the child is residing;
(5) if the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;
(6) the good faith of the applicant in filing the application;
(7) any history of physical, emotional or sexual abuse or neglect by the applicant; and
(8) any other factor relevant to the best interests of the child.
c. With regard to any application made pursuant to this section, it shall be prima facie evidence that visitation is in the child’s best interest if the applicant had, in the past, been a full-time caretaker for the child.
In addition, because of the fundamental parenting rights I described above, the grandparents must also establish by a "preponderance of the evidence" that the "visitation is necessary is avoid harm to the child." To do so, case law in New Jersey requires that the grandparents establish a "special need for continued contact" beyond the "ordinary grandparent-child relationship and its unwanted termination." Allegations must be specific as to the harm that would befall upon the grandchildren, based upon the "unusually close" relationship between the grandparents and the children or on "traumatic circumstances such as a parent’s death." The mere potential loss of memories or the grandparents’ love and care does not meet the grandparents’ required burden.
It was upon an examination of the above that the Appellate Division in Levine v. Levine et al., affirmed the trial court’s dismissal of a grandparent’s application for visitation under the statute. In so doing, the Appellate Division found that the grandparent failed to establish that his relationship with the grandchildren was anything more than "an ordinary healthy and loving grandparent-grandchild relationship."
The Appellate Division also rejected the grandparent’s request to have the grandchildren evaluated by a psychological expert, finding it unnecessary to expose the children to such a process when the situation posed a standard relationship, without any specific allegation of unusual harm or a special relationship. The grandparent’s submission of his own expert report, which was based solely on the grandparent’s own statements (since the expert had not actually met with the parents or the children) failed to sway either the trial court or Appellate Division in his favor.
This case confirms that, while New Jersey’s Grandparent Visitation law does, in fact, provide certain rights and protections for grandparents that did not previously exist in this State, the fundamental rights of parents to raise their children carries far greater weight in the overall analysis.