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Grandparent Visitation Rights in New Jersey
By Theodore Sliwinski, Esquire
The relationship between grandparents and their grandchildren has become increasingly complex over the past few decades. More and more, grandparents are looking to the courts to obtain visitation time with their beloved grandchildren. Unfortunately, the rising divorce rate, soaring single parenthood, increased alcohol and drug use, and the financial pressures of living in New Jersey have all altered the entire New Jersey family structure.
New Jersey's Grandparents' Visitation Statute, N.J.S.A. 9:27.1, allows a grandparent residing in New Jersey to make an application for visitation. The grandparent must prove that visitation is in the best interests of the child. In making this determination, the court must consider eight factors, including:
- The relationship between the child and the grandparent
- The relationship between the parents and the grandparents
- The time that has elapsed since the child last saw the grandparent
- The effect that such visitation will have on the relationship between the child and the child's parents
- If the parents are divorced or separated, the time sharing arrangements that exist between the parents with regard to the child
- The good faith of the grandparent filing the application
- Any history of physical, emotional, or sexual abuse or neglect by the party making application
- Any other factor relevant to the best interest of the child
The starting point for any grandparent visitation case is whether it will serve the best interests of the child. Courts carefully consider the length of the relationship and the frequency of actual contact as primary evidence that the relationship should be preserved. Finally, the court will look at the "totality of the circumstances" when it rules on any grandparent visitation application.
Enforcement of Grandparent Visitation Rights
A grandparent has to file an application with the county court house and request visitation with the grandchildren. The complaint will then be served on the parent(s). Thereafter, the court will set the case down for a case management conference. At this court hearing, the judge will make a sincere attempt to try to mediate a settlement. The judge may also refer the case to mediation. Mediation is the hot new trend in grandparent visitation cases. Mediation is an excellent way to resolve bitter grandparent visitation disputes. The court may also set the case down for a plenary hearing. At the hearing, both parties will be permitted to present evidence that supports grandparent visitations or evidence that proves that grandparent visitation would not be in the child's best interest.
If the case is sent to mediation, it will be heard in approximately 30 to 60 days. The mediator is usually a member of the probation department. Lawyers usually are not permitted to attend the mediation session. If the mediation is not successful, the case will be sent back to the family court for a disposition.
The arguments for grandparent visitation rights
- Grandparents may provide a stabilizing role in their grandchildren's lives, particularly after a divorce or crisis (such as the death of a parent).
- Where grandparents have been involved in a child's life, it can be traumatic for the child to suddenly be denied access.
- The mere fact that parents are divorced, or that the grandparent's child dies or is incarcerated, should not automatically serve to grant the custodial parent the right to sever a positive relationship between grandparents and their grandchildren.
The arguments against grandparent visitation rights
- The state has no business interfering with the child-rearing decisions of competent parents, even if the parent determines that grandparent visitation will not be permitted.
- Some grandparents are excluded from their grandchildren's lives for good cause, for example, where they were abusive to their own children and cannot be trusted with the grandchildren. Some grandparents interfere with ordinary parental decision-making or bad mouth one or both parents to the grandchildren, and create unnecessary aggravation.
- If a conflict exists between the parents and the grandparents, any court interference could destabilize the home environment for the children.
What evidence will I need to produce to convince a court to grant me visitation rights with my grandchildren?
- The love, affection, and other emotional ties that exist between the child and the grandparent;
- The length and quality of the prior relationship between the child and the grandparent;
- The role performed by the grandparent;
- The grandparent's moral fitness;
- The grandparent's mental and physical health;
- The child's reasonable preference;
- The willing of the grandparent to encourage a close relationship between the child and the parent;
- The effect of the child of hostility between the parent and the grandparent;
- Any history of physical, emotional or sexual abuse or neglect of any child by the grandparent;
- Whether the parent's decision to deny visitation is reasonable;
- Any other factor relevant to the physical or psychological well-being of the child.
Other sources of proof include testimony from friends, neighbors, fellow child members, or members of clubs to which you belong.
You will also need to show that visitation is in your grandchild's best interest. Photographs and videotapes showing you having fun with your grandchild are a good way to help you establish the nature of your relationship. Other adults who have seen you spend quality time with your grandchild make good witnesses for this purpose. You may also want to have a psychologist or a therapist to testify about the importance of your grandchildren having a relationship with you.
Obtaining custody of the children if a custodial parent should die
It is not uncommon for a nasty custody battle to arise between the natural parent and the grandparents if the custodial parent should die. In the case of Watkins v. Nelson, 163 N.J. 235 (2000), the New Jersey Supreme Court held that disputes should be settled in favor of the natural parent unless the third party is a "psychologically parent," a biological parent is unfit, or if exceptional circumstances exist. There is a presumption of custody in favor of the parent.
In the Watkins case, the father began seeking custody shortly after the mother died in a car accident twelve days father giving birth. The grandparents never alleged that the father was unfit parent, but only that they had become psychological parents to the child, who had been living with them since the mother's death. A crucial issue decided by the Supreme Court was the standard to be applied, the best interest of the child test versus the stand of termination of parental rights. The court ruled that upon the death of the custodial parent, in an action for guardianship of a child, a presumption exists tin favor of the surviving biological parent. The presumption can be rebutted by proof of gross misconduct, abandonment, unfitness, or the existence of exceptional circumstances, but not by the simple application of the best interest test.
ABOUT THE AUTHOR
Theodore Sliwinski, Esquire, dedicates his practice to providing
quality and very affordable legal services to the public. He believes that everyone should be able to
afford quality legal services. He has twenty-one years of legal experience and has handled hundreds of
divorces, bankruptcies, traffic violations, and criminal and civil cases. He is headquartered in
central New Jersey. Affordability, accessibility, responsiveness and personal commitment is what every
client receives.
Mr. Sliwinski can be contacted by phone at (732) 257-0708 or or Visit Web Site
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