Grandparents’ Rights

New Jersey’s Grandparents’ Visitation Statute allows a grandparent to apply to the court for visitation. This can be a challenge, however, if the custodial parent wants to prevent it. If they are “fit parents,” the court will presume that their decision regarding how the child is raised is in the best interests of the child.

The burden of proof will be placed on the grandparent to prove that depriving the child of a relationship with him or her has the potential of harming the child. Whether or not the denial of the visitation will harm the grandparent in any way is not taken into consideration.

Proving that the child would be harmed if unable to have a relationship with a grandparent is very difficult. If you are put in that position, you need the assistance of a qualified New Jersey lawyer. At the family law office of Aretsky Law Group, P.C., our attorneys understand the challenges you face in seeking to maintain a loving, close relationship with your grandchild. We can help you understand and protect your rights to grandparent-grandchild visitation.

When grandparents bring a case to court to secure their right to visitation, it is usually because the child’s parents have divorced. However, that needn’t be the case. You can ask the courts to allow you grandparent visitation whether the child’s parents are married, separated, or divorced or if one parent has died. You cannot, however, seek visitation of your grandchild if that child has been placed for adoption unless the adoptive parent was a stepparent.

If a grandparent has applied to the court for visitation rights, the court must by law consider eight specific factors:

• The relationship between the child and the applicant;
• The relationship between each of the child’s parents or the person with whom a child is residing and the applicant;
• The time which has elapsed since the child last had contact with the applicant;
• The effect that such parenting time 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 arrangements which exists between the parties 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.

The first statute granting grandparents the right to petition the court for legal visitation rights was enacted in 1972. It stipulated that a grandparent could apply only if one or both of the child’s parents had died and if the court deemed that it would be in the best interests of the child to allow the grandparent to maintain the relationship with the child. The grandparent could not seek visitation rights if the child was placed into adoption.

The next year the law was amended to include situations in which the child’s parents had divorced or separated.

In 1993 the statute was further amended so that grandparents could petition the court for visitation rights even if the parents’ marriage was intact. However, it would no longer be enough to show that granting the request would be in the best interests of the child. It would now be necessary to prove that not allowing the child to maintain a relationship with the grandparent had the potential of causing harm to the child. In addition, the burden of proof was on the grandparent.

From the start, the presumption was always that if the parents are fit, then they have the right to raise the child as they determine to be in the child’s best interests. Cases that followed reinforced that view and placed even more of the burden on the grandparent. One such case was Moriarty v. Bradt. The parents in this case did meet that burden, but the New Jersey Supreme Court held that grandparents must prove by a “preponderance of the evidence” that denying visitation would harm the grandchild.

New Jersey courts presume that a child’s parents act in the child’s best interest. There are some rare circumstances, however, which may lead the court to grant custody to the child’s grandparents:

• death of the parents;
• parents’ criminal conduct;
• drug or alcohol abuse; and
• legal declaration that the parents are unfit.

If you are seeking visitation or custody of your grandchild, the compassionate NJ lawyers at Aretsky Law Group, P.C., will work hard to help you prove to the court that your relationship with your grandchild is vital to the child’s well being.

Call 800-537-4154 24/7 for an initial consultation with an experienced family law attorney at Aretsky Law Group, P.C. We will review your situation and advise you of your rights under the law.