In the United States, parents have a constitutional right to decide, without outside interference, how to raise their children, including where and with whom the kids spend their spend. So do grandparents have visitation rights under New Jersey family law? And if so, what does the law offer a grandparent who may even have had their content cut off? This article will go into detail on the legal history of grandparent visitation rights as well as explain how grandparents today can make good their right to be involved in their grandchildren’s lives. If you’re struggling to spend time with your grandchildren because of whatever issues may arise with their parents, please don’t hesitate to call a Union County child visitation attorney
Grandparents’ Visitation Rights: A Legislative and Judicial History
Originally, New Jersey courts interpreted the United States’ laws and judicial decisions regarding grandparent visitation by focusing on the best interest of the child. However, a relatively recent Supreme Court case called Troxel v. Granville 530 U.S. 57 (2000) caused big changes on that front.
Troxel was a Washington state case about third-party visitation. In Troxel, the Supreme Court decided that a “best interests of the child” test as had been previously used was not sufficient to protect the parents’ constitutional right to decide for their children. In its place, the Court recommended a new focus: “necessary to prevent harm to the child.”
To succeed, now, grandparents (as well as other third parties) who sought visitation rights would need to prove that the child would experience genuine harm if the visitation wasn’t granted. And this could be not some general or vague harm, third parties would need to show a particular and identifiable harm that would happen if their request wasn’t granted.
Today’s “Prevent Harm” Test for Grandparent Visitation Rights
As a result of this history, New Jersey courts now use a two-part test.
First, the third party requesting visitation rights has to prove that a particular and identifiable psychological or physical harm would befall the child if visitation isn’t granted.
Once the third party passes that hurdle, and only once the hurdle is passed, New Jersey courts implement the “best interests of the child test.”
Here the third party bears the burden of showing by a preponderance of the evidence that visitation rights are in the best interests of the child. “Preponderance of the evidence” is an evidentiary standard, and to meet it, third parties must show that there is a greater than 50% chance of what they argue. In arguing for their visitation rights, third parties like grandparents would need to show that the scales tip in favor of allowing visitation.
