Grandparent Visitation: When Grandparents Are Shut Out

Most grandparents never have to worry about suing anyone to spend time with their grandchildren. In fact, many grandparents find that with both parents working, they have become more like second-parents than grandparents.

My parents, for instance, spend an enormous amount of time with my nephews and perform many functions that would traditionally be considered parental duties. Yet, the rewards of sharing this time with cherished little ones seems to far outweigh the burdens, and unlike raising their own children, grandparents can rest easy in the knowledge that grandchildren do go home at the end of the day.

For some grandparents, however, spending time with their grandchildren is not a simple issue. These grandparents are denied time with their grandchildren and must turn to the courts to obtain an order granting them visitation. Often, the dispute will arise in the context of a divorce between the parents of the child. Sometimes, parents who are, and will remain married, chose to deny grandparents access to their grandchildren.

In New Jersey, a state statute grants grandparents the right to seek a visitation order from the court. (New Jersey Statute 9:2-7.1) While they have the right to seek visitation, the battle may be costly, both from a financial and emotional perspective. Yet, many grandparents are left with no other choice, so they chose to press their rights in court.

The primary question for the court in all grandparent visitation cases is “the best interests of the child,” as is the standard in any custody/visitation dispute. Recently, the Supreme Court of the United States decided a case concerning grandparent visitation rights, in a case entitled Troxel v. Granville.

The Troxel case involved a Washington State statute, which gave any person the right to petition for visitation with a child. Unlike the Washington statute, New Jersey’s statute only gives a potential right to visitation to siblings and grandparents. Under our statute, the burden rests with the grandparent to prove that an order of visitation will be in the child’s best interest.

In Troxel, the Supreme Court invalidated the Washington statue because of its breadth. The Court saw the Washington statute as an invitation for state judges to substitute their judgment for that of the parents.

What the Supreme Court did not do in Troxel is shut the door on grandparent visitation statutes. In fact, the Court cited favorably other state statutes – such as New Jersey’s – which give grandparents the right to petition the court for visitation. Washington’s statute was simply too broad to withstand court scrutiny; in the Court’s opinion, Washington State was invading a role best left to parents.

Of course, simply because a statute grants grandparents the right to seek court-ordered visitation does not mean that grandparents denied time with their grandchildren should rush into court to press their rights. Few disputes have the ability to tear a family apart as due disputes over custody or visitation.

The grandparent visitation statute would best be viewed as a fall back measure, rather than an opening move. Alternative dispute resolution, such as mediation, may prove a better first route to attempt reaching agreement in these disputes.

Many grandparent visitation disputes involve deep-rooted issues that go beyond the children who are at the center of the controversy. As with any visitation controversy, it would be best if the litigants remember that the children will suffer the most from the battles their adult relatives wage.