By John Jones, Esq.

In New Jersey, visitation rights of grandparents are controlled by a statute, N.J.S.A. 9:2-7.1. If a parent denies a grandparent the right to visit with a grandchild, the grandparent has the right to make an application to the court for an order to compel visitation. The grandparent bears the burden of proving that visitation is in the best interest of the grandchild. That proof must be by “a preponderance of the evidence.” This means the scales must tip in favor of visitation. Proof by the grandparent that he or she was a “full-time caretaker for the child” in the past, is deemed sufficient evidence that the visitation is in the child’s best interest, unless rebutted or contradicted.

In making a determination, the court must consider the following factors:

(1) the relationship between the child and the grandparent;

(2) the relationship between each of the child’s parents or the person with whom the child is residing, and the grandparent;

(3) the time which has elapsed since the child last had contact with the grandparent;

(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 grandparent in filing the application;

(7) any history of physical, emotional or sexual abuse or neglect by the grandparent; and

(8) any other factor relevant to the best interests of the child.

The New Jersey statute represents the legislature’s efforts to balance the constitutional rights of parents to raise their child, free of interference, with the state’s obligation to protect the child’s best interests. Thus, the focus is on the potential harm to the child and not possible harm to the grandparents.

Initially, a grandparent must demonstrate serious physical or psychological harm to the child if visitation is denied. The harm must be a particular and identifiable harm to the child, not just a general allegation of harm. Only if that harm is proven will the parent’s right to rear their child as they see fit be overcome. Only then will the court decide the visitation issue, based on the child’s best interests. In that regard, the statutory factors do not limit the court’s discretion in deciding what is in the best interest of the child; rather they are guides.

Only those grandparents who have had a direct, personal relationship with the child should make an application to the court. Thus, a grandmother who occasionally babysat a child will fail to establish the required harm to the child if visitation is denied.

Pursuant to another statute (N.J.S.A. 52:27D-9.1), the Department of Community Affairs is required to develop a program which makes grandparents aware of their visitation rights and which informs divorcing parents as to the “utility” to the child of “regular and frequent” visitation with their grandparents.