New Jersey's original grandparent visitation statute allowed visitation only when parents were deceased, divorced or separated. In 1993 that stipulation was removed, allowing grandparents to sue for visitation of children living in intact families. Then came the Supreme Court decision of Troxel v. Granville, which called into question the constitutionality of most grandparent visitation laws. New Jersey was required to examine its statute in 2001 in the case of Wilde v. Wilde. In that case the court of appeals declined to rule on the facial constitutionality of the law, deciding instead that the statute was unconstitutional as applied.
A real decision about the statute's constitutionality had to wait until the 2003 case of Moriarty v. Bradt. The justices upheld the constitutionality of the law but added the qualifier that the grandparents must be able to show that lack of visitation would cause harm to the child. If the grandparents are successful in showing harm, the parents are to propose a visitation schedule. If the grandparents are not satisfied with the visitation schedule, further court action will take place to finalize the schedule.
In addition to the findings in Moriarty v. Bradt, grandparents requesting visitation are bound by the original language of the statutes. Grandparents bear the burden of proving "by a preponderance of the evidence" that visitation is in the best interest of the child. In determining the best interest, the court considers the following:
- The relationship between the child and the grandparent
- The relationship between the grandparent and each of the child's parents or the person with whom the child is residing
- The time elapsed since the last contact with the grandparent
- How visitation will affect the relationship between the child and the child's parents or the person with whom the child is residing
- Any time-sharing arrangement which exists between divorced or separated parents with regard to the child
- The grandparent's "good faith" in filing the application
- Any history of abuse or neglect by the grandparent
- Any other relevant factor.
Adoption terminates the right to visitation unless the adopting party is a stepparent.
See New Jersey Revised Statutes, 9:2-7.1..
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