When a minor child loses a parent, typically the surviving parent is the legal guardian of the child. That can leave the parents of the child’s deceased parent in the lurch when it comes to visitation. They want to maintain the relationship they have forged with their grandchild.
The New Jersey statute can be found at NJSA 9:7.1. The liberty interest of the surviving parent to raise the children as s/he sees fit is a constitutionally protected fundamental right. Constitutional rights are not absolute, and there can be reasonable and necessary limitations if required to safeguard the health, safety and welfare of the child.
It is not presumed that access to the grandparents is in the best interest of the child. If the surviving parent doesn’t agree, the grandparents may file suit in the Family Part of Superior Court. The grandparent has the burden “to prove by a preponderance of the evidence that the granting of visitation is in the best interest of the child.” The statute lists 7 factors, including the relationships among the family members, the time that has elapsed since the last contact, the effect that visitation may have on the child’s relationship with his/her parents, any history of abuse or neglect, as well as “any other factor relevant to the best interests of the child.”
The New Jersey Supreme Court has recognized that there is a need to deal with these claims in an efficient and cost-effective manner, because of the extreme financial burden and disruption of family life that complex litigation can produce. In Major v. Maguire, the Court announced new procedures. Starting with Moriarity v. Brandt (2003), and the later procedural decision in R.K. v. D.L., App. Div. 2014) the Court held that as long as the grandparents plead a “prima facie” showing that it will be harmful to deny visitation, the case should be handled as a summary matter with or without brief and limited discovery, unless a party requests that it be treated as complex. In that case, further procedures are specified by the decision. .
Mediation can be particularly useful in these dilemnas also. The process can achieve a result that addresses the needs of both sides and can defuse the hostility that a lawsuit inevitably produces.
Call us for family law mediation and advice on elder care issues … 732-382-6070