In the recent New Jersey Supreme Court case of Major v. Maguire the Court addressed how lower courts should handle cases where a child?s grandparent or sibling wants visitation rights. In order to get visitation a child?s grandparent or sibling has to file an action under a statute known as the ?Grandparent Visitation Statute.? Under the statute, the grandparent or sibling is required to show that denying visitation would cause a particular level of harm to the child, or their application for visitation will be dismissed by the court.

The facts of the Maguire case are relatively straightforward. Plaintiffs? granddaughter, the child at the center of the case, was born in 2007. The child?s parents, Anthony C. Major (?Chris?) and defendant Julie Maguire, separated in December 2009 after Chris was diagnosed with cancer. Thereafter, they had joint legal custody of their child. Prior to her son?s separation from defendant, plaintiff-grandmother, Suzanne Major, visited her granddaughter approximately once every two weeks; thereafter, she visited the child at her son?s home every weekend, and took her on trips and vacations.

Her contact with the child increased as Chris? health declined. Plaintiff?s husband also visited the child, and often cared for the child while Chris was undergoing medical treatment. Following Chris? death on February 21, 2013, plaintiffs asserted that defendant Maguire had permitted them to see their granddaughter only twice in four months, for a brief visit at a skating rink, and for five minutes after a dance recital.

Plaintiffs rightfully commenced their action for visitation rights under the Grandparent Visitation Statute. New Jersey?s Grandparent Visitation Statute confers on a child?s grandparent or sibling the ability to file an action for a court order compelling visitation.

The Statute states the following:

  1. A grandparent or any sibling of a child residing in this State may make application before the Superior Court, in accordance with the Rules of Court, for an order for visitation. It shall be the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best interests of the child.
  2. In making a determination on an application filed pursuant to this section, the court shall consider the following factors:
    1. The relationship between the child and the applicant;
    2. The relationship between each of the child’s parents or the person with whom the child is residing and the applicant;
    3. The time which has elapsed since the child last had contact with the applicant;
    4. The effect that such visitation will have on the relationship between the child and the child’s parents or the person with whom the child is residing;
    5. If the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;
    6. The good faith of the applicant in filing the application;
    7. Any history of physical, emotional or sexual abuse or neglect by the applicant; and
    8. Any other factor relevant to the best interests of the child.
  3. With regard to any application made pursuant to this section, it shall be prima facie evidence that visitation is in the child’s best interest if the applicant had, in the past, been a full-time caretaker for the child.

In this case, the New Jersey Supreme Court found that the Plaintiffs, who commenced their action for grandparent visitation rights under the statute, alleged in sufficient detail their involvement in their granddaughter?s life from birth and properly contended that their alienation from the child would cause her harm.

Based on these allegations, the Court found that the plaintiffs made the required showing of harm to the child at the initial stage of the action. The Court found that the trial court should have denied the defendant?s motion to dismiss the case and should have given the plaintiffs the opportunity to prove the harm to the child. In its decision, the New Jersey Supreme Court also articulated procedural guidelines for proceedings under the statute.

Divorce and family visitation laws can be complex. If you are a grandparent or sibling looking to file an application under this statute, seek an experienced family law attorney for assistance. Contact Powell & Roman if you have questions about your family concerns.