A grandparent’s right to see his or her grandchildren is something that can cause a great deal of emotions. When a grandparent brings an action before the court to compel a parent to allow them to see their grandchildren, you already know that things are not going well within the family. The burden to convince the court to override a parent blocking access to grandchildren is high and complex.
After the U.S. Supreme Court ruled that parents have a fundamental right to determine who is around their children, New Jersey had to modify its law with regard to grandparent visitation rights. Now, a grandparent must show actual harm to the grandchild or grandchildren if visitation is not granted in order to override the wishes of a fit parent. Sound like a difficult burden to meet? It is.
Recently, the New Jersey Supreme Court addressed the procedure for bringing a grandparent visitation case. When filing the initial complaint, the grandparents must put sufficient facts therein to prove, as a prima facie basis, that there would be harm to the grandchildren without the visitation. Prima facie means that if everything in the complaint were true, the grandparents would sustain their burden. Once that showing is made, the court should determine if the case is complex and what path it should take.
Given the sensitivity of these cases against the rights of parents, the Court indicated if discovery is required, the court and the parties should coordinate and streamline the process, and narrowly tailor the discovery to prevent or minimize intrusion on the privacy of the child and the family. Our Supreme Court also went on to caution about the use of psychological experts in these types of cases, again due to the privacy concerns.
When a grandparent case comes before the court, the court must open the door of the process to the grandparents if they meet their initial burden. However, as the case goes along, once it becomes clear that grandparents cannot ultimately prove actual harm to the grandchild, the court can and should discuss the case to end the imposition on the rights of the parents.
As with all family law cases, it is important that all parties consider forms of alternative dispute resolution, such as mediation and arbitration. Given how difficult these cases can be, involving the court only makes things worse, most of the time. When children are involved, we always recommend that our clients consider mediation to reach an agreement that is in the best interest for the child, while shielding them from the judicial process.
If you have any questions about grandparent visitation, CONTACT US. Remember that we will not tell you what you want to hear. We will tell you what you need to know.