As reported in the online version of the New Jersey Law Journal, in a story by David Gialanella,, state Senator Loretta Weinberg of Bergen County introduced  legislation that would lower the burden of proof for grandparents and siblings seeking visitation.

In the year 2000, grandparent visitation became much more difficult to obtain as a result of the United States Supreme Court case of Troxel v. Granville which held that Washington’s "breathtakingly broad" grandparent visitation statute to be unconstitutional.  At issue was the constituonal right to parental autonomy vs. grandparents vistitation.  That case set off a wave a litigation nation wide attacking state’s grandparent visitation statutes.  New Jersey was not immune to this and in 2003, the New Jersey Supreme Court decided the case of Moriarty v. Bradt (a case in which I drafted the Petition for Certification.)  In Moriarty, the court held that grandparents may be awarded visitation over parental objections if a "potential for harm" standard can be shown by a preponderance of the evidence.  SInce that case, it has been much more difficult for grandparents to get visitation because it is very difficult to show harm, and just alleging generic harm was not enough.  We have blogged about this in the past.  In the cases I have had since that time, in order to successfully obtain grandparent visitation, you almost had to show that the grandparent took on a parental role for some period of time and/or was a constant presence in the child(rens) lives. 

Under the proposed legislation, if the grandparent or sibling seeking visitation was once the child’s full-time caregiver, that would be  deemed prima facie evidence that visitation is in the child’s best interest. The new law would also provide that in those instances, the denial of visitation would be evidence of potential for harm.  Notably, "animosity between the child’s parent and the applicant shall not be a basis for the court to deny an order for visitation"

In addition, the following would also be prima facie evidence of both the best-interest and potential-for-harm standards:  (1) if one or both parents is deceased; (2) if the parents are divorced; (3) if the applicant demonstrates a past or ongoing close relationship with the child; or
(4) if the applicant has tried to establish a close relationship and the parents have refused to permit it.  If any of these things was present, the court would then be required to order at least one mediation session to attempt to resolve the conflict. If it is still unresolved, an evidentiary hearing in the context of the statutory factors would be held. 

While well intentioned, it seems unlikely that this proposed law, in its current form, will withstand constitutional scrutiny.  While parts of it, specifically, relaxing the burden if the grandparents were once a full time caretaker makes sense and may be appropriate, and perhaps even death of a parent if the application is by the deceased person’s parents (especially given the expert testimony in Bradt), lowering the standard in cases of divorce, or where there was a close relationship or an attempt at a close relationship, simply ignores the principles set forth in Troxel.  Moreover, ignoring animosity between the parties seems antithetical as that can directly impact the best interest and often is the reason that the parents are exercising their autonomy to deny visitation in the first place For instance, what if the grandparents undermine the parents, question their parenting style, disparage them to the children, etc.?  Should that be ignored.

In any event, stay tuned to see if this legislation gets passed.

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