Hoboken Family Law Blog
Grandparents are integral members of many families. They provide love, support and an important tie to a child’s ancestry and heritage. Nevertheless, in New Jersey, a grandparent (or great-grandparent) who wants a judge to order visitation, assuming the child’s parents are considered fit by the law, has to clear a fairly high hurdle.
That hurdle is high because the law recognizes that one of the fundamental rights of parents is the right to raise their children in the way that they think is the best. Courts will only force parents to go against their own preferences in very limited circumstances. Opportunities do exist for such a court order in some circumstances so, whether you are the grandparent seeking visitation or a parent who opposes visitation, it is important to consult with a knowledgeable Hoboken child custody attorney about your situation.
A case that was decided by the Appellate Division court recently is a good example of how high this hurdle is. F.S. was a man who had several children, including a daughter with S.P.M., two sons with A.K. and a stepson (A.K.’s son) whom F.S. was in the process of adopting.
The relatives seeking visitation were the father’s mother and her mother. The father lived with his mother and grandmother for a period of years and the kids’ grandmother and great-grandmother enjoyed regular and frequent contact with the children.
Problems arose, though, which led to the children’s grandmother and great-grandmother working out a visitation agreement with the father in order to avoid having to go to court and have a judge resolve their disagreements. Despite the written agreement, problems remained. According to the grandmother and great-grandmother, the father only brought the children to the women for four of the first 11 scheduled visits.
Eventually, the father cut off contact completely. The grandmother and great-grandmother sued seeking a court order mandating visitation. The courts ruled against them because the evidence they gave the court was not enough to trigger a legal right to grandparent visitation.
New Jersey law requires proof of ‘specific harm’ to the child
When it comes to grandparent visitation, the law requires a grandparent to show that a certain level of specific harm will come to the child (or children) if the child doesn’t get visitation with the grandparent(s). Vague and general harms such as “missing opportunities for creating ‘happy memories’” aren’t enough to trigger court-ordered visitation. Proof that the grandparent had a “strong and loving relationship” and had previously enjoyed substantial amounts of visitation time with the grandchild isn’t enough, either.
When the parents are legally considered fit parents, the grandparent needs something extra, like proof of a particularly close relationship (for example, evidence that a grandparent and grandchild had a relationship functionally equivalent to a parent-child relationship might be sufficient.) Alternately, evidence of some sort of trauma, such as the death of a parent, may be adequate proof to clear this high hurdle.
In this case, the father and both mothers were all considered to be fit parents by the court. That meant that the grandmother and great-grandmother faced that high hurdle and they didn’t have the proof they needed to clear it.
What, you may ask, about the agreement the father signed with the grandmother and great-grandmother? Weren’t the grandmother and great-grandmother entitled to demand its enforcement?
Actually, they weren’t. The Appellate Division explained that the existence of the agreement didn’t really help the grandmother and great-grandmother at all. If it had been “signed off” upon by a judge, either as a consent order or a judgment, then the outcome might have been different. However, when all a grandparent has is a private agreement like this one, she still must either show that special level of harm to the child that’s required by the statute, or else lose her case for court-ordered visitation.
If you find yourself resolving a child custody or visitation dispute through the legal system, you need legal counsel that has the experience to get you the results you need. Reach out to knowledgeable Hoboken family law attorney Frank Marciano. Attorney Marciano, backed by his experienced team, has handled countless visitation cases and is ready to get to work for you. To set up a consultation, contact the office online or call 201.656.1000.