Missing your Grandchildren During the Pandemic?

By Christina Stripp.

COVID-19 isolates  many extended family members from each other, including forcing prolonged separations between grandparents and grandchildren.

Almost every state across the United States recognizes the need to enable grandparents to obtain court-ordered visitation with their grandchild.  In New Jersey, we have a state law to assure that a grandparent can apply to the courts for an order allowing them to visit with their grandchild.  The Court must apply specific factual issues (which we call “factors”) in deciding whether it is in a child’s best interests to order the visitation.  This has been the standard since 2000, when the Supreme Court of the United States ruled in Troxel v. Granville, 530 U.S. 57 (2000).  In Troxel, the Supreme Court emphasized the importance of the grandparent/grandchild relationship by invalidating a sweepingly broad statute from the state of Washington, which permitted any person, at any time, to petition a court for visitation and permitted a court to decide that the visitation was in a child’s best interest.

After Troxel, the New Jersey Supreme Court issued its own opinion in 2003, called Moriarty v. Bradt, 177 N.J. 84 (2003).   The Moriarty Court decided that there was a threshold issue before the court would even look at a family’s facts:  in every case in which visitation is denied or is argued to be insufficient, the grandparents bear the burden of establishing, by a preponderance of the evidence, that visitation is necessary to avoid harm to the child.  Subsequent cases in New Jersey have established that a grandparent has a right to present evidence to support their initial application.  If the grandparent passes this threshold, then the parent is required to propose a schedule, and if the grandparent is dissatisfied, the court will assess the schedule, and will approve a schedule that is in the child’s best interests.

New Jersey family law does its best to balance the competing interests of all involved: the constitutional rights of the parents, the asserted rights of the grandparents (or sibling), and of course, the rights of the affected child.   However, the present crisis has had unprecedented and unexpected impacts on what would normally be our routines, and a public health crisis has definite implications for avoiding harm to a child.  If you are a grandparent who wants to spend time with your grandchild, or if you are a parent having issues with a grandparent seeking visitation, contact the experienced and compassionate lawyers in our Family Law Group.