Bill Text: NJ S789 | 2012-2013 | 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: Slight Partisan Bill (Democrat 2-1)
Status: (Engrossed - Dead) 2013-11-25 - Reported out of Assembly Committee, 2nd Reading [S789 Detail]
Download: New_Jersey-2012-S789-Introduced.html
STATE OF NEW JERSEY
215th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2012 SESSION
Sponsored by:
Senator LORETTA WEINBERG
District 37 (Bergen)
SYNOPSIS
Establishes new standard for court to grant grandparent or sibling visitation rights under certain circumstances.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel
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 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.
b. In making a determination on an application [filed] made pursuant to this section, the court shall consider the following factors:
(1) he relationship between the child and the applicant;
(2) he relationship between each of the child's parents or the person with whom the child is residing and the applicant;
(3) he time which has elapsed since the child last had contact with the applicant;
(4) he 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) f 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.
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, it shall be prima facie evidence that visitation is in the child's best interest and the child will be harmed if the applicant is denied visitation.
d. In the event that: one or both of the child's parents are deceased; the child's parents are separated or divorced; the applicant can demonstrate that there is or has been a close relationship between the child and the applicant; or the applicant has made significant efforts to establish a close relationship with the child, and the child's parent's have refused to allow such a relationship to develop:
(1) It shall be prima facie evidence that visitation is in the child's best interests and the child will be harmed if the applicant is denied visitation;
(2) The court shall order the applicant and the child's parent to participate in at least one session of mediation, conducted by a certified mediator, in order to resolve any visitation issues. Failure of any party to participate in the mandatory mediation session shall be considered a factor by the court in making a determination on the application; and
(3) The court shall make a determination on the application based on the factors listed in subsection b. of this section, except that animosity between the child's parent and the applicant shall not be a basis for the court to deny an order for visitation.
(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
Under the provisions of section 1 of P.L.1971, c.420 (C.9:2-7.1), a grandparent or any sibling of a child residing in this State may make an application for an order for visitation. The applicant bears the burden to prove, by the preponderance of the evidence, that visitation is in the best interests of the child, and the court then makes a determination on the application based on eight factors that constitute best interests of the child.
Although State statute allows grandparents or siblings to apply for visitation, recent court decisions have limited instances where visitation is permitted over the objections of a parent. In Moriaty v. Bradt (177 N.J. 847, 827 A.2d 203 (2003)), the New Jersey Supreme Court ruled that if a parent objects to a grandparent or sibling's application for an order for visitation, the applicant bears the burden, by a preponderance of the evidence, to prove that visitation is necessary to avoid potential harm to the child. If the court agrees that the potential for harm has been shown, the parent is required to offer a visitation schedule, to which the applicant must agree. This "potential for harm" standard places an onerous burden on an applicant to prove that the child would be specifically or concretely harmed if the court denies the order of visitation, especially if the applicant has been unable to establish a relationship with the child because the child's parent refuses to allow visitation.
This bill, therefore, establishes a new standard for review that courts shall use to make a determination on an application made by a child's grandparent or sibling for an order for visitation under certain circumstances.
Specifically, the bill stipulates that if: one or both of the child's parents are deceased; the child's parents are divorced or separated; the applicant can demonstrate that there is or has been a close relationship between the child and the applicant; or the applicant has made significant efforts to establish a close relationship with the child, and the child's parent's have refused to allow such a relationship to develop:
● it shall be prima facie evidence that visitation is in the child's best interests and the child will be harmed if the applicant is denied visitation;
● the applicant and the child's parent or parents shall be required to participate in at least one session of mandatory mediation, conducted by a certified mediator, in order to resolve any visitation issues. Failure of any party to participate in mandatory mediation shall be considered a factor by the court in making a determination on the application; and
● the court shall make a determination on the application based on the eight factors outlined in the statute, except that animosity between the child's parent or parents and the applicant shall not be a basis for the court to deny an order for visitation.
