Arons & Solomon | February 23, 2018 | Articles
Divorce holds consequences for the entire family, not just parents and children. It’s normal for grandparents to worry about how a divorce settlement will impact their relationship with their grandchildren.
Fortunately, grandparents have options.
The State of New Jersey has a statute allowing grandparents to request time with their grandchildren by filing a separate suit seeking visitation. The suit should be filed with the Superior Court in the child’s residential county. An attorney specializing in family law can help file the appropriate papers.
The child’s parents will receive a copy of the application, and a notice to appear in court for a hearing. If a visitation schedule is agreed upon, it will become a court order and enforced by law.
According to N.J.S.A. 9:2-7.1:
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… 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.
Grandparent visitation rights are case-specific and depend on eight main factors, including:
- The best interests of the child
- The grandparent’s relationship with the child
- The grandparent’s relationship with the custodial and noncustodial parents
- Any existing time-sharing arrangement between the child’s parents
- History of physical, emotional or sexual abuse or neglect on the part of the grandparent
- Time elapsed since the grandparent last had contact with the child
- The good faith of the grandparent in filing the application
- Visitation’s potential effect on the relationship between the child and his/her parents
It is important to remember the courts are evaluating the facts of the case through the lens of the “best interests of the child,” not the best interests of the grandparents.
What if the Parents Are Not Divorced?
All issues related to grandparent visitation are considered a separate lawsuit and not considered part of any divorce. Technically, grandparents can apply for visitation rights if the child’s parents are still together, divorced, or were never married.
Legal Decisions Impacting Grandparent Visitation Rights
Decisions in the higher courts have significantly limited the visitation rights of New Jersey grandparents. In 2000, the U.S. Supreme Court case Troxel v. Granville ruled the “best interest of the child” argument was not enough to overrule a parent’s constitutional right to make decisions on how to best raise their children.
In 2003, the New Jersey Supreme Court applied the Troxel decision to the Moriarty v. Bradt case, which ruled that parental choices in New Jersey can only be overridden with proof the child’s health or well-being is at risk. In other words, grandparents must provide solid evidence to the courts that severing the relationship will physically or emotionally harm the child.
This standard is a lot tougher than the “best interest of the child” argument. The U.S. and New Jersey Supreme Courts have made it clear that a dispute between a parent and a grandparent is not a contest between equals. The parent will always have the legal advantage.
Hire a Professional
Loving and supportive grandparents deserve a place in the lives of their grandchildren. If you are a grandparent looking for a legal means to preserve your relationship with your grandchild, don’t suffer through the process alone and uninformed. We’re here to help.
For a free consultation on grandparent visitation rights, contact the New Jersey family law experts at Arons & Solomon.