Grandparent Visitation Rights

Grandparent Visitation Rights

The United States Supreme Court has granted a Writ of Certiorari in the case of In re The Visitation of Natalie Anne Troxel, Isabelle Rose Troxel, minors, Jennifer Troxel and Gary Troxel, 173 Wash. 2d 1, 969 P.2d, 21 (1998) involving the constitutionality of the Washington State legislation creating third party visitation rights. (Note: the visitation statute under scrutiny in the Washington case did not specifically relate to grandparent visitation, but rather to the broader category of third parties.) The Supreme Court of Washington ruled that the State’s third party visitation statute authorizing visitation over parental objection was constitutionally flawed under the Federal Constitution. The Court concluded that neither the State’s police powers nor the parens patriae responsibility could be invoked as justification in the absence of harm to the physical or mental health of the child or to public safety, peace, order, or welfare. The Washington Court held that:

“Short of preventing harm to the child, the standard of ‘best interests of the child’ is insufficient to serve as a compelling State interest overruling a parent’s fundamental rights. State intervention to better a child’s quality of life through third party visitation is not justified where the child’s circumstances are otherwise satisfactory. To suggest otherwise would be the logical equivalent to asserting that the State has the authority to break up stable families and redistribute its infant population to provide each child with the ‘best family.'” Id. supra 969 P.2d at 31-32.

The matter is currently scheduled for argument in January 2000 with a decision expected sometime in the middle of next year.

New Jersey has a much more specific grandparent visitation statute, to wit N.J.S.A. 9:2-7.1 that provides that “a grandparent or any sibling of a child residing in the State may make application before the Superior Court, in accordance with the Rules of Court, for an order for visitation. It is the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best interest of the child.” (N.J.S.A. 9:2-7.1(a)).

In making a determination on an application filed pursuant to this statute, a court is required to consider the following factors:

• The relationship between the child and the applicant;
• The relationship between each of the child’s parents or the person with whom the child is residing and the applicant;
• The time which has elapsed since the child last had contact with the applicant;
• 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;
• If the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;
• The good faith of the applicant in filing the application;
• Any history of physical, emotional or sexual abuse or neglect by the applicant;
• and Any other factor relevant to the best interests of the child.

N.J.S.A. 9:2-7.1(b).

With regard to any application made pursuant to this statute, it is a prima facie evidence that visitation is in the child’s best interest if the applicant had, in the past, been a full time caretaker for the child. (N.J.S.A. 9:2-7.1(c)).

New Jersey’s grandparent visitation statute was revised on June 29, 1993 to eliminate the requirements of divorce, death or separation having to exist before a grandparent (or sibling) could make an application to the Court for visitation.

Recent New Jersey cases have evidenced a desire to permit grandparents and other third parties to seek visitation of children or unemancipated individuals. For instance, in a 1995 trial decision out of Camden County, grandparents were permitted to intervene in an adoption case. In another trial level case in 1996 a stepdaughter was granted visitation with her mother over the objection of a stepfather. In an appellate case from 1995 a grandmother was viewed as “standing in the shoes of her deceased daughter” in a custody dispute against the foster parent.

Notwithstanding the foregoing, decisions across the country with regard to the constitutionality of grandparent/third-party visitation statutes are not consistent and, as a result, a pronouncement from our Nation’s Supreme Court would be quite enlightening as to the viability of such laws.

Charles F. Vuotto, Jr., Esq. is a family law attorney in New Jersey.