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.
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:
by David M. Gorenberg, Counsellor at Law
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:
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.
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.