Bill Text: NJ S1205 | 2014-2015 | Regular Session | Introduced
Bill Title: Codifies in statute case law developed legal standards for establishing grandparent and sibling visitation with a child when visitation objected to by child's parent, guardian, or legal custodian.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2014-01-30 - Introduced in the Senate, Referred to Senate Judiciary Committee [S1205 Detail]
Download: New_Jersey-2014-S1205-Introduced.html
Sponsored by:
Senator LORETTA WEINBERG
District 37 (Bergen)
SYNOPSIS
Codifies in statute case law developed legal standards for establishing grandparent and sibling visitation with a child when visitation objected to by child's parent, guardian, or legal custodian.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning grandparent and sibling visitation rights and amending P.L.1971, c. 420.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 1 of P.L.1971, c.420 (C.9:2-7.1) is amended to read as follows:
1. a. [A] (1) If there is an objection by a parent, guardian, or legal custodian to visitation by a grandparent or [any] sibling of a child residing in this State, the grandparent or sibling 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] (2) (a) The grandparent or sibling applicant shall be required to prove by a preponderance of the evidence that [the granting of visitation is in the best interests of] a denial of visitation will result in harm to the child.
(b) If the court finds that the grandparent or sibling applicant has established proof by a preponderance of the evidence that a denial of visitation will result in harm to the child, then the applicant shall be permitted visitation with the child based upon either a visitation schedule agreed upon by the parties to the visitation action, or as determined by the court based upon the best interest of the child following the criteria set forth in subsection b. of this section.
b. In making a determination on [an application filed] a grandparent or sibling visitation schedule pursuant to this section, the court shall consider the following factors:
(1) The relationship between the child and the grandparent or sibling applicant, including whether the applicant had at any time been a full-time guardian, legal custodian, or caretaker for the child;
(2) The relationship between each of the child's parents, or [the person with whom the child is residing] guardian or legal custodian, 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], guardian, or legal custodian;
(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 for an order for visitation;
(7) Any history of physical, emotional or sexual abuse or neglect by the applicant; [and]
(8) The desire of the child for visitation with the applicant expressed to the court in an in-chambers interview, whenever the court has determined that the child is capable of articulating this desire; and
(9) Any other factor relevant to the best interests of the child.
c. [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] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill)
d. The court may order the grandparent or sibling applicant and one or both of the child's parents, or guardian or legal custodian, to participate in an approved complementary dispute resolution program or other form of mediation, in order to assist the parties in resolving any visitation issues subject to the provisions of this section.
(cf. P.L.1993, c.161, s.1)
2. The Supreme Court may adopt Rules of Court to effectuate the purposes of this act.
3. This act shall take effect on the first day of the second month next following the date of enactment.
STATEMENT
This bill codifies legal standards for establishing grandparent and sibling visitation with a child when such visitation is objected to by the child's parent (or guardian or legal custodian with concomitant parental rights). These standards were first articulated by the New Jersey Supreme Court in the seminal case of Moriarty v. Bradt, 177 N.J. 84 (2003), cert. den., 540 U.S. 1177 (2004), which followed in the wake of the United States Supreme Court decision on contested visitation, Troxel v. Granville, 530 U.S. 57 (2000). The central, underlying issue in both cases: under what circumstances could the government infringe upon a parent's fundamental constitutional right to the rearing of one's own child, recognized under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, in order to permit visitations with that child by a third party over the objections of the parent.
Based on Moriarty, the bill's provisions require that, as a first step to addressing a situation of contested visitation involving a child's grandparent or sibling, the grandparent or sibling applicant to the court would be required to prove by a preponderance of the evidence that a denial of visitation would result in harm to the child. The Moriarty decision provided guidance for making a determination of such harm, which could be based on factual or expert evidence, and could include such traumatic circumstances related to the child's well-being as "the death of a parent or the breakup of the child's home through divorce or separation" or "the termination of a long-standing relationship" between the applicant and the child. See Moriarty, 177 N.J. at 117.
Continuing with the codification of the Moriarty ruling, the second step, only applicable if the grandparent or sibling applicant is successful in making a showing of harm to the child, provides for the court to then order visitation with the child, based upon either a visitation schedule agreed upon by the parties to the court action, or as determined by the court based upon the best interests of the child.
If the court is required to make a "best interests" determination on a visitation schedule, it would take into consideration the following factors:
(1) The relationship between the child and the grandparent or sibling applicant, including whether the applicant had at any time been a full-time guardian, legal custodian, or caretaker for the child;
(2) The relationship between each of the child's parents, or guardian or legal custodian, and the applicant;
(3) The time which has elapsed since the child last had contact with the applicant;
(4) The effect that such visitation would have on the relationship between the child and the child's parents, guardian, or legal custodian;
(5) If the parents are divorced or separated, the time sharing arrangement that exists between the parents with regard to the child;
(6) The good faith of the applicant in filing the application for an order for visitation;
(7) Any history of physical, emotional or sexual abuse or neglect by the applicant;
(8) The desire of the child for visitation with the applicant expressed to the court in an in-chambers interview, whenever the court has determined that the child is capable of articulating this desire; and
(9) Any other factor relevant to the best interests of the child.
The bill also provides, as part of a visitation action filed by a grandparent or sibling, that the court may order the grandparent or sibling applicant and one or both of the child's parents, or guardian or legal custodian, to participate in an approved complementary dispute resolution program or other form of mediation in order to assist the parties in resolving any visitation issues subject to the provisions of the bill.
