Grandparent Visitation Rights – A Complicated Issue For Courts

Grandparent visitation rights is a complicated issue for the courts.  On the one hand, you have the rights of the parents to determine how they raise their child – including to determine to whom the child is exposed.  On the other hand, you have the grandparents, who desire to have a relationship with their grandchild.  Both sides usually have compelling reasons why they are correct, so courts struggle to make the correct decision.  This is exactly what happened in the unpublished appellate decision of B.S. (Ben) v. A.S. (Amy)

In B.S.  v. A.S. , Ben, Jack’s father and Mindy’s grandfather, sued Amy, Mindy’s mother, for grandparent visitation after he had been denied visitation with Mindy.  Jack was Mindy’s father.  Jack and Amy divorced in 2010.  Jack was an alcoholic.  Jack ceased having parenting time with Mindy in 2011.  In 2014, Ben filed a complaint against Amy for visitation with Mindy, while Jack was terminally ill with cirrhosis of the liver.  Jack subsequently died.  The trial court denied Ben’s application for a plenary hearing and hence visitation with Mindy.  Ben appealed.  (Amy also appealed the court’s denial of her request for attorneys’ fees.)

The appellate panel reversed and remanded for the trial court to evaluate the allegations, giving due consideration to all the statutory factors.  Pursuant to the Grandparent Visitation Statute, N.J.S.A. 9:2-7.1, the grandparent seeking visitation over the objection of a fit parent must prove by a preponderance of the evidence "that visitation is necessary to avoid harm to the child." Moriarty v. Bradt, 177 N.J. 84 (2003). The probability that a child will suffer serious psychological or physical harm provides grounds for interference with parental autonomy under the doctrine of parens patriae. The Court provided the following examples of supporting evidence:  the grandparents' evidence can be expert or factual. For example, they may rely on the death of a parent or the breakup of the child's home through divorce or separation. . . . In addition, the termination of a long-standing relationship between the grandparents and the child, with expert testimony assessing the effect of those circumstances, could form the basis for a finding of harm. 

If a grandparent meets that burden, the presumption in favor of parental decision-making is overcome and the best interest standard applies. Following are the relevant factors to be considered:

(1) The relationship between the child and the applicant;

(2) The relationship between each of the child's parents or the person with whom the child is residing and the applicant;

(3) The time which has elapsed since the child last had contact with the applicant;

(4) 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;

(5) If the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;

(6) The good faith of the applicant in filing the application;

(7) Any history of physical, emotional or sexual abuse or neglect by the applicant; and

(8) Any other factor relevant to the best interests of the child.

A "fact-sensitive analysis addressing all of the relevant statutory factors is required." R.K. v. D.L., 434 N.J. Super. 113, 151 (App. Div. 2014).  The trial judge's premise in  B.S. v. A.S. was that Ben was required to show he was a "psychological parent or a primary attachment figure" or that he had something more than a "healthy and loving grandparent-grandchild relationship" in order to be entitled to relief.  The Appellate Division found that this premise was erroneous and that none of the factors enumerated in N.J.S.A. 9:2-7.1(b) established that a threshold relationship must be met. The Appellate Division went on to state that “while the relationship between the grandparent and child is surely an important factor to be weighed, it is but one of the factors to be considered.” 

In light of recent rule amendments and case law, the Appellate Division ordered the trial court to determine whether B.S. v. A.S. should proceed as a complex matter (R. 5:4-2(j)), as Ben requested, with discovery as necessary, or as a summary action, which is the normal procedure in non-dissolution family matters.  The panel further vacated the order denying Amy counsel fees and remanded for the trial court to reconsider her application for costs incurred thus far, as well as the estimated costs of further litigation.

As this case aptly demonstrates, grandparent visitation can be a complicated issue when considering the competing interests of the parties.   Careful analysis must be done to the facts specific to each case so that the most appropriate and compelling arguments can be made.


Sandra C. Fava is the editor of the Riker Danzig Family Law Blog and heads the Family Law Practice Group of Riker Danzig Scherer Hyland & Perretti LLP. Sandra is resident in Riker Danzig's Morristown, New Jersey office though she practices throughout New Jersey. You can reach Sandra at (973) 451-8453, or sfava@riker.com.