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Grandparent Visitation Rights in a New Jersey Divorce
Generally, the natural parents will have a
presumptive right to custody. Only in cases where the parents are found to be
unfit, or there are exceptional circumstances, will third parties be granted
custody. At any time after a divorce, grandparents may petition the court for
visitation rights. Grandparents have the
right to petition the court for visitation rights in New Jersey. Recently, the
U.S. Supreme Court has held that a parent’s proposed visitation schedule,
unless it denies visitation entirely, is presumptively better than a
grandparent’s proposed visitation schedule.
Also see AARP
Grandparent Information Center.
Also see
Article from the Family Law Advisor on grandparents custodial rights.
Grandparent Visitation:
AARP Grandparent
Information Center
Grandparent Rights in the State of New Jersey
A grandparent typically will be granted the right to visitation during and
once the divorce is final. If the Grandparent is being denied visitation he or
she or both must file an application with the Superior court in the County in
which the child resides. At this point in time it is up to the grandparent(s)
to prove to the court that visitation with them is in the best interests of
the child. The New Jersey court like all states look out for the child above
and beyond anything else. When the court makes the decision it will take into
consideration the eight factors below:
- The relationship between the child and the applicant.
- The relationship between each of the child's parents or person with whom
the child is residing and the applicant.
- The time which has elapsed since the child last had contact with the
applicant.
- The effect that such visitation will have on the relationship between
the child the child's parents or the person with whom the child is residing.
- If the parents are divorced or separated, the time sharing arrangement
which exists between the parents with regard to the child.
- The good faith of the applicant in filing the application.
- Any history of physical, emotional or sexual abuse or neglect by the
applicant .
- Any other factor relevant to the best interests of the child.
New Jersey Grandparent Visitation FAQs
by David M. Gorenberg, Counsellor at Law
1) My son/daughter is in the process of a divorce. His/her spouse has primary
physical custody of the children. Do I have an visitation rights?
Yes.
2) Can you explain what my rights are?
I'd be happy to. New Jersey has a statute that specifically
addresses this issue. In fact, the statute addresses visitation by siblings as
well. That statute is printed below:
NJS 9:2-7.1. Visitation rights for grandparents or siblings
a. A grandparent or any sibling of a child residing in this
State may make 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:
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The relationship between the child and the applicant;
-
The relationship between each of the child's parents or
the person with whom the child is residing and the applicant;
-
The time which has elapsed since the child last had
contact with the applicant;
-
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;
-
If the parents are divorced or separated, the time
sharing arrangement which exists between the parents with regard to the
child;
-
The good faith of the applicant in filing the
application;
-
Any history of physical, emotional or sexual abuse or
neglect by the applicant; and
-
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.
3) Great. But what does all of that mean to me, the loving
grandparent of a wonderful child(ren)?
I'm glad you asked. Let's do this one step at a time.
Paragraph a: If your grandchild lives in New Jersey
(whether or not the parents are in the process of a divorce) you may file an
application with the Superior Court, in the County in which the child resides.
You have the burden of proving, by a preponderance of the evidence (or, that
it is more likely than not), that the requested visitation is in the best
interests of the child.
Paragraph b: In making its decision, the Court must
consider the eight factors listed. No one factor is given any more weight than
the others. Rather, each is factored into the Court's determination, and given
the weight that the Judge assigned to the case determines to be appropriate
under the circumstances of your case.
Paragraph c: If, during the child's life, you were the
full-time custodian of the child, your chances of succeeding have just grown
immeasurably. This is especially true the more recently you cared for the
child.
4) Okay. I think I understand all of that. But how do I go
about seeing my grandchildren?
Naturally, the first step is to try to speak to the primary
custodial parent, and resolve the issue amicably on your own. You would be
surprised what can be accomplished with a simple letter or phone call.
5) Yeah, but my kid's spouse won't speak to me.
Under these circumstances, you will need to file an
application with the Superior Court, in the County where the child lives.
6) How do I do that?
As with most issues in the Court, you have choices.
Naturally you can hire an attorney to assist you in this process. The attorney
you hire should understand the statute. If you do this on your own, the Court
has employees who can assist you in completing the necessary papers.
7) Okay, then what.
The Court will provide a copy of your application to the
parents, and will send them, and you a notice to attend a hearing. Generally,
the hearing will occur in 2 - 6 weeks, depending on how crowded the Court
docket is in that County.
8) What happens at the hearing?
Generally, it begins with the Judge asking for some
preliminary information from all of the parties. Where do you live, etc. Then,
he will ask the parents if they agree with your application, or if they have
objections. If they agree, YOU WIN.
If they agree, the next step is to devise an appropriate
visitation schedule, with the Judge's assistance. Once determined, it will be
in the form of a Court Order. You and the parents must abide be the Court's
Order, or face sanctions. (Please see the
Contempt of
Court/Enforcement FAQs.)
If they do not agree, they will have to put their specific
reasons for wanting to deny visitation "on the record." This means that they
will have to tell the Judge exactly why they don't think you should see the
children.
9) Assuming that they tell the Judge they disagree, what
happens next?
Good question. Each Judge handles this next phase somewhat
differently. The differences also take into account some of the factors listed
above, and the parents' reasons for denying you access to the children.
Some Judges will send you to mediation. Again, if this is
successful, YOU WIN. If not, you go on to the next step.
Some Judges do not like mediation in the grandparent
visitation realm, and move the matter directly into some form of visitation
evaluation. Generally this is done with the assistance of a Court-appointed
psychologist or other mental health professional.
10) Psychologist? That sounds expensive. It can be.
Generally, many of the psychologists work on a sliding scale, though not always.
Sometimes, they work on a reduced fee based on a contract with the Court.
11) But who pays for it?
Excellent question. Again, Judges handle this differently,
depending on the facts of the case. Sometimes, you will be required to front
the money for the evaluation, since it was your application that initiated the
process. Sometimes, all parties will be required to contribute to the fees, on
the theory that money should not be a stumbling block to a legitimate
application. Either way, the Judge usually makes this decision "without
prejudice." That is, he specifically reserves his right to reallocate the fees
at the conclusion of the matter.
12) What happens after the evaluation?
The evaluator makes recommendations to the Court. If the
recommendations are acceptable to the parties, you get a visitation Order, and
again, YOU WIN.
If the recommendations are not acceptable to one party or
the other, the dissatisfied party is entitled to request a trial.
13) Trial?
Yes, a trial. Each party will present evidence, including
the report and testimony of the evaluator. If your case gets this far, it is
strongly recommended that you seek the services of an attorney. While the
Court will not force you to hire an attorney, and every person has the right
to represent him/herself, the Court has very strict rules which it must follow
and enforce. New Jersey, like all other states, has Court Rules and Rules of
Evidence. These can be daunting, and lack of comprehension of the Rules does
not forgive you from abiding by them.
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