In 2000 the U.S. Supreme Court decided a case that struck down a Washington state law that allowed any third party (in this particular case, grandparents) to petition for visitation rights with a child over parental objections. According to the Court, the right of parents to raise their children as they see fit is a fundamental right, and that this right includes the power to decide who can visit their children. The Court did not rule that a grandparent could never win the right to visit a grandchild, but did state that a parent’s wishes must be given extra weight and that it must be presumed that fit parents act in the best interests of their children.

Now, jump ahead a decade and shift your focus to New Jersey. In an effort to comply with the Supreme Court’s 2000 ruling, New Jersey law currently allows grandparents to petition for visitation rights, but the grandparent has the burden of proving by a preponderance of the evidence (in other words, that it is at least slightly more likely than not) that denying grandparent visitation would harm the child. This sounds like a relatively easy burden to meet, but in reality many New Jersey grandparents have been denied visitation with their grandchildren because it is difficult to prove that lack of visitation will harm the child, especially if the grandparent has been unable to establish a relationship with the child because the child's parent refuses to allow visitation.

So yesterday the New Jersey legislature introduced a bill that would presumably make it easier for grandparents to win visitation rights. The bill provides that if a grandparent was once the child's full-time caregiver, that would be prima facie (self-evident, obvious) evidence that visitation is in the child's best interest, and would also consider that fact to be prima facie evidence of potential for harm if visitation is denied.

Under the bill, four other instances would also amount to prima facie evidence of both the best-interest and potential-for-harm standards: (1) if one or both parents is deceased; (2) if the parents are divorced; (3) if the grandparent demonstrates a past or ongoing close relationship with the child; or (4) if the grandparent has tried to establish a close relationship and the parents have refused to permit it.

If any of those circumstances exist (and, let’s face it, it’s not too difficult for a grandparent to meet at least one of those requirements), the court will be required to order one or more mediation sessions to attempt to resolve the conflict. If mediation does not resolve the conflict, the court will decide the visitation request based on factors such as the relationship between the child and grandparent, the relationship between the parents and the grandparent, and the time passed since the child's last contact with the grandparent. Notably, a court will not be allowed to consider the animosity between the parent and grandparent when making its decision.

Supporters of grandparent visitation rights welcome the proposed legislation. Others feel it undermines the fundamental right of parents to raise their children, and will not likely pass constitutional muster if enacted.

So what do you think? When if ever should a parent’s wishes with regard to grandparent visitation be disregarded? When if ever should grandparents have a right to visit their grandchildren even over the objections of the child’s fit parents?