Grandparents’ Rights in Divorce: a Non-Constitutional Agenda?

Notice that I don’t even consider the term “unconstitutional” in this case at all, because while the statutes will often codify the rights of the parent, and parental autonomy, the same is not regarded when considering grandparents and their moral – for lack of a better descriptive term – right to see their own grandchildren. It does happen quite often when grandparents complain that they’re denied any visitation with their grandchildren for whatever reason – sometimes it’s due to the child(ren), or perhaps the mother or father has died, and even worse, the remaining parent insists upon not allowing the grandparents to visit. Believe it or not, there’s not necessarily any particular violation in this case, given the fact that there’s no specific “right,” per se, in the Constitution stating that grandparents actually have the right to see their grandkids. They do, however, have the right to petition for visitation, and it’s coded right in the N.J.S.A. 9:2-7.1. Here’s the layout everyone needs to be aware of.

There are eight flexible factors courts consider when reviewing applications for visitation: parental autonomy, potential harm to the child(ren), potential harm to the grandparents, the relationship between child(ren) and grandparents, maintenance of the relationship, expert testimony, evidence of alienation, and sufficient evidence to prove that in a court of law. If an application can show all of these factors to be evident, grandparents stand a good chance to have it written down that they have an actual right to see their grandchildren.

It can easily muddy the waters, though, but it’s appropriate given many situations. What if the parent(s) are unfit? What if the grandparents are, in fact, fit – and perfectly within their rights to see their own flesh and blood? Should they not be allowed to see those children? Does a parent(s) have a right to say ‘no’? When is it appropriate to say ‘no’?

The sad fact is that oftentimes it can’t be proven in a court of law that a grandparents‘ essential ‘removal’ from the life of a child(ren) wouldn’t necessarily harm the child(ren) psychologically as it would in cases involving actual parental alienation. Proof would simply have to be given to determine that a relationship between a child and a grandparent is generally very substantial, worthy of managing for the duration of the child’s life, and this would obviously constitute a need to review every case, every situation, uniquely and carefully.

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