Written by: William P. Lemega, Esq.
If you are a grandparent in the State of New Jersey and have recently been denied contact or visitation with your grandchildren by either parent, your legal road to relief may not be as easily traveled as one might expect, but success can be had with the right plan and the right attorney. This is because New Jersey courts have limited jurisdiction over such claims made by grandparents against parents and the decisions they make regarding the upbringing of their children. Simply stated, the right of parents to raise their children without interference by the state is a right that is deeply rooted in both history and society, and is identified as a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment; therefore, as a grandparent seeking visitation, you have a tough burden to overcome.
That being said, a success is still possible. The nature of the relationship between the child and the grandparent is important. The relationship must be such that the grandparent and child have developed such substantial emotional ties that the denial of visitation could cause serious and immediate harm to that child. Substantial and emotional ties between the child and a grandparent are critical to the Court’s analysis.
The grandparents bear the burden of establishing, by a preponderance of the evidence, that visitation is necessary to avoid harm to the child. However, not just any type of harm will do. Grandparents must establish that denying visitation would wreak a particular identifiable harm, specific to the child, to justify interference with a parent’s fundamental due process right to raise a child free from judicial interference and supervision. The Court has been very clear that conclusory, generic items, such as loss of potentially happy memories, are not a sufficient basis to warrant such an intrusion into a parent’s decision making. Further, even where a particular, identifiable harm, specific to the child is alleged, the grandparent has the burden of providing credible, admissible evidence to substantiate the allegations of harm.
In addition to the above mentioned hurdles, the Court has also set forth special pleading requirements for grandparents seeking visitation that must be met before the Court can even consider the actual substance of a grandparent’s application. This is another reason why obtaining the proper representation of a competent attorney is of even higher importance when one is seeking visitation as a grandparent. Bare-bones notice pleadings are not acceptable in grandparent visitation cases as grandparents seeking visitation are held to a higher standard than the generalities normally considered acceptable as notice pleading. The Court requires that any complaint filed under the grandparent visitation statute should be accompanied by a detailed and verified affidavit setting out the factual basis relied on by the grandparents to justify relief. Absent a showing of these special circumstances, parents who decide to limit or even preclude grandparent visitation will not be faced with any court-ordered examinations or other measures of investigation simply because the grandparents request it.
When seeking visitation as a grandparent, one should keep in the mind the above obstacles that stand between you and time with your grandchild, which can be effectively navigated though obtaining the proper representation of an experienced attorney.
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To obtain additional information about family or divorce law in New Jersey, or to discuss how we can assist you with your situation, please schedule a confidential consultation with New Jersey family law attorney Terry Lyons or one of our experienced New Jersey divorce lawyers at Lyons & Associates by calling 908-575-9777, or filling out our intake form.