Grandparent Visitation Rights Under N.J.S.A. 9:2-7.1 – By John P. Paone, Jr. and Megan S. Murray

Our courts have limited jurisdiction over claims by grandparents against parents and the decisions they make regarding their children. The court cannot overrule the decision of a parent to deny grandparent visitation merely because it believes that visitation is good, or right, or even in the child’s best interests.

Indeed, unless grandparents can show that the failure to permit visitation “would wreak a particular identifiable harm, specific to the child,” the court cannot intervene and undermine the parental authority and privacy the law affords to the parents.
1.The right of parents to rear their children without interference by the state is deeply embedded in our history and culture. Indeed, this right has been identified as a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
2.Both the United States and New Jersey Supreme Courts have recognized that “the custody care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”
3.In 1971, New Jersey adopted N.J.S.A. 9:2-7.1, which confers upon grandparents standing to file an application for visitation with their grandchildren. As written, the statute requires grandparents to prove only that such visitation is “in the best interests of the child.” In determining whether visitation is in the best interests of the child, the statute directs the court to consider eight (8) factors, including the relationship between the grandparents and the child, the relationship between the grandparents and the child’s parents, and the good faith of the parties. A literal reading of the statute leads to the conclusion that if the factors weigh in favor of the grandparents, they will be permitted visitation with the child notwithstanding any objection from the parents. However, since the statute’s enactment, our courts have all but re-written the law regarding grandparent visitation to now require that grandparents prove that visitation is necessary to avoid harm to the child.
4.The genesis of this change in the law came about with the United States Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57 (2000). Troxel actually considered the constitutionality of a non-parent visitation statute enacted by the State of Washington. In Troxel, the grandparents’ son committed suicide, leaving behind two (2) children.
5.When the grandparents sought visitation with their grandchildren, the mother of the children limited the grandparents to one visit per month.
6.In response, the grandparents filed an application with the trial court, seeking overnight visitation with their grandchildren, with whom they had a long-standing pre-existing relationship.
7.The trial court ruled in favor of the grandparents and granted them substantial overnight visitation with the children based on its finding that grandparent visitation was in the best interests of the children pursuant to Washington’s statute.
8.Ultimately, the case was appealed to the Washington Supreme Court. In reversing the decision of the trial court, the Washington high court held that Washington’s non-parent visitation statute was an unconstitutional interference with the fundamental right of parents to rear their children.
9.On certiorari to the United States Supreme Court, a plurality of justices affirmed the decision of the Washington State high court. The Supreme Court recognized that parents have the right to determine whether their children should have a relationship with their grandparents:
…[T]he decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent’s decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination.
10.The Court found that Washington’s non-parent visitation statute failed to accord any special weight to the parent’s decision regarding visitation. The Court observed that if the statute was left undisturbed, judges could overrule parents solely upon a determination of the child’s best interests.
11.The clear implication of the Troxel decision was that in non-parent visitation cases, courts must give significant deference to the decision of the parent as to the amount of visitation, if any, to take place between the child and the non-parent.
12.The Supreme Court held that if a parent’s decision becomes subject to judicial review, courts must accord “some special weight to the parent’s own determination.”
13.Following Troxel it was inevitable that New Jersey would be called upon to review the constitutionality of N.J.S.A. 9:2-7.1. In Moriarty v. Brandt, 177 N.J. 84 (2003), the New Jersey Supreme Court addressed whether the grandparent visitation statute encroached upon the constitutional rights of parents. The plaintiffs in Moriarty were the maternal grandparents to the defendant/father’s two (2) children.
14.The grandparents’ daughter, the children’s mother, was divorced from the defendant/father and died from a drug overdose when the children were twelve (12) and nine (9) years of age.
15.Up to the time of the mother’s death, the children had enjoyed substantial visitation with the grandparents and had developed an extensive relationship with them.
16.However, the defendant/father wished to limit contact between the grandparents and the children, resulting in the grandparents filing an application with the court for regular, overnight visitation.
The trial court granted the grandparents monthly visitation with the children as well as extended visitation during the summer.
17.The defendant/father appealed, arguing that N.J.S.A. 9:2-7.1 was unconstitutional as applied.
18.The Appellate Division reversed the trial court, holding that that the defendant/father’s “substantive due process rights were violated by the imposition of the visitation ordered.”
19.On certification, the New Jersey Supreme Court held that the “best interests” standard as applied in the context of grandparent visitation was an unconstitutional infringement upon the fundamental right of parents to rear their children without interference. The Court did not strike the statute as unconstitutional. Instead, the Court interpreted N.J.S.A. 9:2-7.1 to require grandparents to establish, by a preponderance of the evidence, that visitation is necessary to avoid harm to the child.
20.In Moriarty, the Court established a three (3) step process which must be followed in all cases where grandparents seek visitation with their grandchildren:
1) In every case where visitation is denied by a parent, the grandparents bear the burden of establishing by a preponderance of the evidence that visitation is necessary to avoid harm to the child.

2) If the court agrees that the potential for harm has been shown, the presumption in favor of parental decision making will be deemed overcome. At that point, the parent must offer a visitation schedule. If the grandparents are satisfied, that will be the end of the inquiry.

3) If the grandparents do not accept the schedule, the court should approve a schedule that it finds is in the child’s best interests based on the application of the statutory factors.21

Under the Moriarty standard, the first inquiry of the court in deciding grandparent visitation cases must always be whether visitation is necessary to avoid harm to the child. This “threshold harm standard is a constitutional necessity because a parent’s right to family privacy and autonomy are at issue.”22 Indeed, the best interests standard under N.J.S.A. 9:2-7.1 is never reached if the grandparents do not first demonstrate that harm will result to the child in the absence of visitation. Evidence of harm can be established by expert or factual testimony.23 However, as a practical matter, it will be necessary to produce expert testimony as in most cases the grandparents will likely be unable to testify to the physical, emotional, and/or psychological toll the absence of visitation may have on the child.
Two (2) years after Moriarty, the Appellate Division decided the case of Mizrahi v. Cannon, 375 N.J. Super. 221 (App. Div. 2005). In Mizrahi, the Appellate Division denied the grandparents’ request for visitation with a three (3) year old child based on their failure to prove that the child would suffer identifiable harm in the absence of visitation. The Appellate Division held that “[c]onclusory, generic items, such as ‘loss of potential happy memories’, are not a sufficient basis to warrant such an intrusion into a parent’s decision making.”24 Rather, grandparents must establish that denying visitation would “wreak a particular identifiable harm, specific to the child.”25
In denying the grandparents’ request for visitation, the Appellate Division observed:
We have no doubt that it is painful for the Mizrahis not to see [the child], and we may empathize with them. The harm to which Moriarty, supra, refers, however, and which must be proven, is harm to the child, not harm to the grandparents. That the Mizrahis may have had a warm relationship with [the child] until January 2001, when [the child] was three years old, does not mean that [the child] will experience harm now if visitation is not ordered.26

Following Mizrahi, the Appellate Division in Daniels v. Daniels, 381 N.J. Super. 286 (App. Div. 2005), denied grandparent visitation as to children ages six (6) and three (3) despite their grandmother having exercised “significant visitation with the minor children” and having had a “strong and loving relationship” with them.27 The Appellate Division made clear that “[w]hile we do not denigrate the value of a loving relationship with grandparents, the denial of which might result in some harm to any child, we conclude that the type of harm to which Moriarty referred must be something more substantial.”28
Similarly in Rente v. Rente, 390 N.J. Super. 487 (App. Div. 2007), the Appellate Division held that the grandparents’ testimony that they babysat for their grandchild during the first two (2) years of the child’s life was insufficient to establish that the denial of visitation would result in harm to the child. 29 The Appellate Division found that the trial court should have dismissed the grandparents’ visitation petition at the conclusion of trial based on their failure to overcome the presumption in favor of parental decision-making.30
Clearly, in order to successfully handle grandparent visitation cases, practitioners must become familiar with the case law and the impact it has had on interpreting N.J.S.A. 9:2-7.1. The reality is that grandparents seeking visitation over the objection of parents face a tough legal hurdle to overcome. Notwithstanding the fact that grandparents will often be a sympathetic litigant, these cases are not decided on mere emotion and sympathy. Rather, the court is bound to apply the law and in doing so must be careful not to intrude upon the fundamental constitutional rights of parents to raise their children in the manner that they see fit. Unless grandparents can meet their burden to demonstrate “a particular identifiable harm specific to the child,” an application for grandparent visitation will be denied.

1 Mizrahi v. Cannon, 375 N.J. Super. 221, 234 (App. Div. 2005).
2 Moriarty v. Bradt, 177 N.J. 84, 100 (2003).
3 Moriarty at 101, quoting Prince v. Massachusetts, 321 U.S. 158 (1944).
4 Moriarty at 117.
5 Troxel v. Granville, 530 U.S. 57, 60-61 (2000).
6 Id. at 61.
7 Id.
8 Id. at 69.
9 Id. at 62-63.
10 Id. at 70.
11 Id. at 67.
12 Id. at 69.
13 Id. at 70.
14 Moriarty at 88.
15 Id. at 88-91.
16 Id. at 118-119.
17 Id. at 93-94.
18 Id.at 94.
19 Id.
20 Id. at 117.
21 Id.
22 Id. at 118.
23 Id. at 117.
24 Mizrahi at 234
25 Id.
26 Id.
27 Daniels v. Daniels, 381 N.J. Super. 286, 288 (App. Div. 2005).
28 Id. at 293.
29 Rente v. Rente, 390 N.J. Super. 487, 494-496 (App. Div. 2007).
30 Id.
*John P. Paone, Jr. is a past chair of the New Jersey State Bar Association Family Law Section and is currently 2nd Vice President of the New Jersey Chapter of the American Academy of Matrimonial Lawyers. He is a Certified Matrimonial Law Attorney and serves by appointment of the New Jersey Supreme Court as a member of the Matrimonial Committee of the Board on Attorney Certification. He is the senior partner of Paone & Zaleski in Woodbridge where he limits his practice to divorce and family law.

**Megan S. Murray is an associate with the Law Offices of Paone & Zaleski in Woodbridge, New Jersey. Before joining the firm, she served as clerk to the Honorable Judge Paul Kapalko, Presiding Judge, Family Part, Monmouth County. Ms. Murray is the Co-Chair of the Young Lawyer’s Subcommittee of the Family Law Section of the New Jersey State Bar Association for the 2009-2010 year. Ms. Murray also serves as an editor for Dictum, the newsletter for the Young Lawyer’s Division of the New Jersey State Bar Association.