New Jersey Divorce Lawyers Blog
Grandparents Rights
You may be asking yourself, what happens if I can no longer see my grandchild(ren)? It could occur if a parent, your own son or daughter in some instances, limits or prohibits your time with your grandchild because of an argument you had with your child or, sometimes, this occurs after a divorce, separation, or the death of your grandchildren’s parent.
If you cannot reach an amicable agreement with your grandchild’s parent, you should consider filing an application in the county Family Court (the Superior court of New Jersey) where the child lives called a “petition” seeking visitation and seek to establish a regular visitation schedule so that you can see your grandchild(ren) on some regular basis. Your application will be “on notice” to all parties, including the parent(s) of your grandchild(ren). It is better if you can show that you tried to resolve the matter prior to filing your application with the court, to show good faith on your part.
Who has the burden of proof in a case like this?
You will have the burden to prove that your grandchild is being harmed by your denial of this visitation. Judges must consider any relevant evidence to make a determination that the child will be harmed without the court-ordered time you are seeking, including but not limited to an established grandparent-grandchild relationship, life-altering changes in the child’s home during or after the parents’ divorce or separation, death of a parent, etc. It may be necessary to provide expert testimony that the child has or will suffer psychological harm if they are cut off from seeing you.
The “Best Interest of the Child” Standard:
The court will require you to establish that spending time with you is in your grandchild’s best interest, substantiated by evidence, including but not limited to your relationship with your grandchild(ren), your relationship with the child’s parents, the length of time since the child has had contact with you (and any circumstances surrounding your prior contact including if your grandchild lived with you, if you were a caregiver, etc.), the parents’ visitation arrangement (if they are divorced or separated if they were not married), the reasons surrounding your current denial of contact with your grandchild(ren), the potential impact on the child’s relationship with the parent(s) if the proposed time is granted, and any history of sexual or physical abuse by you or the child’s parent(s), if applicable.
If you claim that the parent(s) are unfit to care for your grandchild(ren), then you will have to prove that the natural parents are unable to provide for the safety and welfare of the child and demonstrate that living with you would be in the child’s best interests, considering the child’s health, safety, and general welfare. Seeking custody will require the use of experts and result in a plenary hearing ( a mini trial) in order for the Judge to render a decision as to a proposed change in custody.
Unfortunately, the process for obtaining a change in custody or even requesting visitation rights with your grandchild(ren) is not a simple process. Sadly, extensive case law in New Jersey has created hurdles for grandparents to overcome before they can even seek a visitation order from a New Jersey Court. This is because parents’ rights in raising their children are constitutionally protected and superior to any other person, – even the child’s grandparents – absent a showing that the “best interests of the child” are at risk. New Jersey’s current case law establishes a presumption that “fit” parents act in the best interests of their children. Therefore, a grandparent seeking to compel a visitation schedule with a child in the custody of a fit parent must overcome this presumption; and many parents use this presumption to dismiss grandparent visitation petitions even before there is a hearing where the grandparents are afforded the opportunity to present their position.
Grandparents seeking visitation of their grandchild(ren) are faced with a difficult challenge. They have the right to engage in discovery and present their evidence to the court, but the case must be strong enough to overcome the presumption that a fit parent will act in the best interest of his or her child. There is much case law on this matter and it is clear that a grandparent cannot simply establish that visitation is in the child’s best interest simply by saying so; rather, the grandparent has the burden to affirmatively prove to the Court that the child will suffer harm unless the visitation is granted.
How do you go about starting the process to see your grandchildren in New Jersey?
The law in this area is complex. You should consult an experienced family law attorney to counsel and represent you in a matter such as grandparent’s visitation rights in New Jersey.
The family law attorneys at Goldstein Law Group have more than 100 years of combined experience in this delicate area of family law.
The attorneys at Goldstein Law Group extensive experience assisting New Jersey residents with a myriad of custody and visitation related issues, including grandparent’s visitation rights, and we are here to help you when you are experiencing problems seeing your grandchildren. To schedule an appointment to speak to one of our knowledgeable New Jersey family law attorneys, call us at 732-967-6777 and ask for a Free 10 Minute Case Evaluation*. We have offices conveniently located in Old Bridge, (Middlesex County) and Brielle, (Monmouth County), and serve clients in all county courts throughout the State of New Jersey including Ocean County, Monmouth County, Burlington County, Somerset County, Union County, Essex County, Hudson County, and all counties throughout the State of New Jersey.
Mark Goldstein, Esq.
