Grandparents Rights and DCP&P New Jersey

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Grandparents rights and DCP&P Cases NJ

Many relatives, especially grandparents, believe that have constitutionally protected rights that permit them to see and raise their grandchildren.  However, they do not.  In 2000, the United States Supreme Court held in Troxel v. Granville, 530 U.S. 57, that a fit parent has the right to deny grandparents the ability to visit their grandchild. In Trowel, the Court emphasized the strong fundamental liberty interest that parents hold, which afford them the right to care and raise their children as they see fit.  The Court specifically held the Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” We have long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment counterpart, “guarantees more than fair process.” The Clause also includes a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests.”

The Troxel Court went on to online the many cases where the U.S. Supreme Court found that parents have a constitutionally protected right to care, custody and control of their children. In Meyer v. Nebraska, 262 U. S. 390, 399 (1923), the Court held that the liberty protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.”  Two years later in Pierce v. Society of Sisters, 268 U. S. 510 (1925), the Court again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.” Thereafter, in Prince v. Massachusetts, 321 U. S. 158 (1944), the High Court stated “[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”

Decades later, the topic arose again and the Supreme Court held in Wisconsin v. Yoder, 406 U. S. 205, (1972) “[t]he history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.”  Likewise, in Quilloin v. Walcott, 434 U. S. 246 (1978), the Hight Court stated “[w]e have recognized on numerous occasions that the relationship between parent and child is constitutionally protected.”  Also, in Parham v. J. R., 442 U. S. 584 (1979) the Court voiced that “[o]ur jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Accordingly, the Court in Trowel ruled that in light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.

Nevertheless, despite robust protection from the our Court, parental rights are not absolute.  Meaning, parents cannot simply raise and treat their children anyway they desire.  The government still holds the power to intervene where the child’s interests may be harmed.  For instance, the State may create laws concerning child abuse, child labor, education, heath, and even car seats, to insure a minor child is protected.

New Jersey’s Grandparent Visitation Law

Along those same lines, New Jersey enacted its first version of the Grandparent Visitation Statute in 1972.   The Visitation Statute, amended in 1973, afforded standing to grandparents to seek visitation only when “either or both of the parents of a minor child were deceased, divorced, or living separate. The Statute was subsequently amended again in 1987 to allow siblings to apply for visitation with a child. Thus, prior to 1993, “intact” families (those not disrupted by death or divorce) were not subject to statutory visitation rights of grandparents.

However, matters changed in 1993 when our State Legislatures passed another version of the grandparent visitation statute.  The new statute read:

a. A grandparent or any sibling of a child residing in this State may make an 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 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.

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.

What are my rights as a grandparent? NJ DCP&P Lawyers Can Help

The new statute expanded the scope of grandparents’ visitation rights and removed the requirement that the birth parents be deceased or divorced. The visitation law is still effective today.  Thus, if you or someone you love is seeking assistance with visiting a grandchild, please contact our office for immediate assistance at (908)-356-6900.