What Visitation Rights Do Grandparents Have with Their Grandchildren?

Jamie Berger, Esq.Jamie N. Berger, Esq., Jacobs Berger Family Law, presented an educational program on grandparent visitation claims vs. parental rights to attendees at the 22nd Annual Sophisticated Elder Law Conference, New Jersey’s premier continuing education program for attorneys, held at the New Jersey Law Center in New Brunswick, NJ. Ms. Berger expanded on grandparent visitation rights and the decision in the NJ Supreme Court case of Major v. Maguire.

Major v. Maguire provides guidance to Trial Courts on whether and how to let grandparents’ motions for visitation proceed, with consideration of grandparents’ rights, but with the most important factor being the best interests of the child.

In Major v. Maguire, the NJ Supreme Court overturned the Trial Court’s dismissal of a case in which grandparents had tried to secure visitation rights to their granddaughter under the Grandparent Visitation Statute, N.J.S.A. 9:2-7.1. In the Trial Court, Anthony and Suzanne Major claimed that they had been very involved in their granddaughter’s life, despite her parents’ separation, until the death of her father, their son, Chris Major, in 2013. After that, they claimed, the girl’s mother, Julie Maguire, had restricted visitation to only two visits, total. A 2003 case, Moriarty v. Bradt, established that, in order to be granted visitation under N.J.S.A. 9:2-7.1, grandparents must show that the child would suffer harm without the visitation. Following Moriarty, the Majors argued that, absent visitation with them, their granddaughter would suffer harm. Ms. Maguire moved for dismissal.

The Trial Court granted the motion for dismissal, saying that the Majors had not met the burden of showing specific harm to their granddaughter, and that they should have attempted to work out the matter with Ms. Maguire without resorting to litigation. Before granting dismissal, the Trial Court had not given the Majors the opportunity to conduct discovery, call an expert witness, or pursue mediation with Ms. Maguire.

Grandparents Visitation RightsThe Supreme Court overturned the Trial Court’s dismissal, holding that since the Majors were so continuously involved in their granddaughter’s life, they should at least have been given the opportunity to satisfy their burden (as per Moriarty) to prove harm via discovery, expert witnesses, etc. The Supreme Court also ruled that there is no requirement in such a case to take steps to resolve the matter before going to court.

Further, the Supreme Court established a test to determine when grandparents should have the opportunity to prove harm in cases such as Major v. Maguire, when a custodial parent’s motion for dismissal could prevent the grandparents from showing harm. In these cases, the Court ruled, trial courts must weigh the complexity of the case against the intrusiveness of the effort to show harm. That effort may require discovery and expert testimony, and thus a case management conference. All of these could interfere with the privacy of a family and drain its resources, so they are neither necessary nor appropriate in every case. In cases that are not complex, the parties may turn to summary action, with or without case management and discovery.

How is complexity determined? The Court gave grandparents the opportunity to request that their case be treated as complex, which would give them the right to offer as many facts as they wanted about harm to the child before the Trial Court decided if discovery or expert evaluation should be done. If the Trial Court orders discovery, the parent(s) and grandparent(s) should work together to streamline the process, focusing only on the relationship between grandparent(s) and grandchild(ren) and the possible harm caused by lack of visitation. Expert testimony should only be used when absolutely necessary. At all times, Trial Courts should be sensitive to the impact on the privacy of the child and family and, especially if expert testimony is required, to the family’s resources. The Court further ruled that, even once discovery begins, the trial court may dismiss the case at any time if the grandparents do not meet their burden to show harm. Finally, the Supreme Court stated that Trial Courts should encourage litigants to mediate or arbitrate grandparent visitation actions whenever possible.

Central to this test was the Supreme Court’s desire to minimize any harm to the child that might result from a potentially intrusive effort to prove harm from lack of visitation by grandparents. The rights of grandparents and the best interests of the child must both be taken into account, but the best interests of the child take precedence.
Ms. Berger’s presentation on Grandparents Visitation Rights was given at the Elder Law Conference, organized by the New Jersey Institute for Continuing Legal Education, a fully accredited CLE provider in NJ, NY & PA.

For more information, or to talk about your child custody options with one of our licensed and experienced New Jersey matrimonial law attorneys, please reach out to our office at 973-718-7705.

About the Author:

Jamie Berger practices exclusively in the area of family law. She has extensive experience in all aspects of litigation in family and appellate court proceedings. Prior to entering into private practice, Jamie served as a Law Clerk for The Honorable Eugene A. Iadanza, J.S.C. in the Monmouth County Superior Court, Family Part.

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