The “grandparent visitation” statute sets forth eight factors for the Court to consider in infringing upon parental autonomy to compel grandparent visitation over the objection of the parents’ fundamental right to raise their children as they see fit. Therefore Grandparent Visitation Statue is subject to strict scrutiny. The Court in Moriarty v. Brandt, 177 N.J. 84 (2003) held that the statute “could survive a constitutional challenge only if a ‘threshold harm standard’ augmented the ‘best interest of the child’ factors prescribed by the Legislature.” Major v. Maguire, 224 N.J. 1, 9 (2016).
[W]hen the child’s parent or parents object to the proposed visitation, the grandparent seeking such visitation must prove by a preponderance of the evidence that denial of his or her application would result in harm to the child…[I]f the grandparent meets that burden, the presumption in favor of parental decision-making is overcome, and the court sets a visitation schedule in the best interests of the child. Id. at 9 (citing Moriarty, supra)
Therefore, before the Court will consider the factors set forth in N.J.S.A. 9:2-7.1, in making a finding whether the grandparent(s) seeking visitation have made their requisite prima facie showing that the denial of visitation will cause harm to the child.
In the event an application for grandparent visitation is made, the first analysis is whether the grandparent(s) will be able to show “harm.”
In Moriarty the grandparent(s) met the burden of “harm.” The background is as follows. Julia Brandt and Patrick Moriarty were married and had two children, Brian and Tara. Julia Brandt was hospitalized for substance abuse and had supervised visitation with Brian and Tara by her parents, Mr. and Mrs. Brandt. Julia later died from an overdose. The Court found that the extensive relationship that the children had with their grandparents, having spent years seeing them every weekend. In addition, the children had lost their mother and their link to their maternal side of the family was through their grandparents.
Major presents another example of grandparents having met the burden of “harm.” Susan Major had regular contact with her granddaughter for years. Her son had weekly visitation, and Ms. Major visited with her granddaughter every weekend, enjoyed weekends with the child at her home about once a month, and took the child to work annually for “take your child to work day.” She and her son, along with her granddaughter, took annual trips to Disney World and other vacations. When her son became terminally ill, she stayed with her son and continued to care for her granddaughter during visitations.
Major, provides detailed guidance as to the procedure to follow when filing a complaint for grandparent visitation, including setting forth the facts that support a grandparent will meet the prima facie burden of “harm,” the complaint should be drafted as prescribed in R. 5:5-(c) including requiring the trial court to hold an initial management conference, set forth a discovery schedule, identify whether the case is complex to protect due process rights. In addition, when seeking to have the matter “designated as ‘complex,’ the plaintiff should ordinarily file a non-conforming complaint, as permitted by R. 5:4-2(i), to supplement the form pleading required by Directive 08-11. The parent or parents opposing the visitation should also use this detail in their responsive pleadings, without constraints on the length of their pleadings. If discovery is required, the court and the parties are to work together to coordinate and streamline the process. Whether the case is designated as complex or handled as a summary action, Family Part judges have broad discretion to permit, deny, or limit discovery in accordance with the circumstances of the individual case.”
Under the court’s supervision, the parties should address only the issues in dispute: whether the grandparents have met their burden to demonstrate harm to the child in the absence of visitation, and, if so, what visitation schedule will serve the best interests of the child, applying the factors identified in N.J.S.A. 9:2-7.1. Moriarty, supra, 177 N.J. at 117.
Any discovery should be carefully circumscribed to prevent or minimize intrusion on the privacy of the child and his or her family. Major, supra, 224 N.J. at 24.
Fourth, the Court may consider expert testimony for the grandparents to meet their burden under N.J.S.A. 9:2-7.1.
Fifth, the Court should not hesitate to dismiss an action if the grandparents have not met their burden of “harm” to the child.
“Finally, trial courts should encourage parties to mediate or arbitrate grandparent visitation actions in accordance with New Jersey’s strong policy in favor of alternative dispute resolution.” Major, supra, 224 N.J. at 25.
However, in a visitation dispute between grandparents or third parties, the moving party does not need to prove by a preponderance of the evidence that the visitation is necessary to avoid harm to the child. The standard to be applied to a visitation dispute between grandparents is the best interest of the child.