Feelings surrounding divorce aren’t limited to the couple separating—family members can also experience strong emotions during this time. There may be sadness that their child’s marriage is ending, concern for their child’s future, and, if there are grandchildren in the picture, fear of potentially losing contact with them.
Grandparents can be loving and supportive figures in the lives of their grandchildren, but when it comes to their specific legal rights to this relationship, the picture is murky.
As is so often true of family law matters, each case is highly dependent on the facts of individual situations, and it’s best to consult an attorney with experience helping grandparents navigate their rights in New Jersey divorce cases.
If you’re being denied visitation with your grandchild after their parents are divorced, you have options. As a grandparent in New Jersey, you may have some legal recourse.
What are grandparents’ rights?
Under New Jersey law, parents have a fundamental right to raise their children without state interference unless the child is being harmed or at risk of harm by one or both parents. As a result, legal statutes and court precedents make terminating parental rights a long process. It’s not impossible, but it’s also not easy.
Grandparents, on the other hand, don’t have a fundamental legal right to see, talk to, or visit their grandchildren. However, there is a statute that allows grandparents and siblings to request visitation rights under specific circumstances. What’s more, in rare cases of parental death, incarceration, or general unfitness, grandparents may be awarded custody or legal guardianship of their grandchildren.
However, exercising these legal rights depends on the specific facts of each situation. In the majority of cases, grandparents who cannot work out a mutually acceptable arrangement with their grandchild’s parents must petition the court for legal visitation rights.
Grandparents as psychological parents
Parenting relationships aren’t necessarily limited to that between a child and their parent. Other family members or loved ones may sometimes step into a role referred to as a “psychological parent.”
While the phrase “psychological parent” can be used in colloquial, non-technical ways, referring to a close, supportive relationship between a child and an adult, it also has legal significance.
From a legal perspective, psychological parents are individuals who undertake the responsibilities of parenting even though they are not biological or adoptive parents. In New Jersey, such actions are acknowledged and may lead to the granting of legal rights similar to child custody and parenting time.
To be designated as a psychological parent, an individual must prove that:
- The biological or adoptive parent consented to, and fostered, the person’s formation of a parent-like relationship with the child
- The person lived with the child in the same household
- The person assumed significant responsibility for the child’s care, education and development, including contributing to the child’s support (financial or otherwise) without any expectation of compensation
- The person functioned in a parental role for long enough to establish a bonded, dependent, parent-child type of relationship
Note that being deemed a psychological parent does not automatically entitle someone to child custody or parenting time, but it does extend the legal right to independently pursue custody or parenting time via the court. This is a separate claim from seeking grandparents’ rights, but both can potentially be evaluated depending on the specific factual circumstances.
How to apply for grandparents’ rights
If you’re seeking grandparents’ rights, you must first file a request in the county where your grandchild lives or with the county court issuing custody and parenting time decisions for your grandchild (if the two aren’t the same).
The petition must then be served to all the parents and/or legal guardians of the grandchild listed in the petition.
If you’re granted visitation after a successful mediation or court trial, the children’s parents will then propose a schedule that fits into their existing parenting time agreement. If you exercise your right to reject their proposal, you’ll have to prove how it would cause harm and propose and justify amendments to the agreement.
An experienced family law attorney can simplify this process for you and help you avoid missteps that could add tension to contentious situations.
What factors are considered when determining grandparents’ rights?
Under N.J.S.A. 9:2-7.1, the court must consider the following factors when determining if a grandparent should be granted visitation rights:
- The relationship between the applicant and the child
- The relationship between the applicant and each of the child’s parents or the person with whom the child resides
- The time 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 co-parenting arrangement between them
- 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
It will be helpful to your case if you can provide your attorney with calendars, text, emails, voicemails, notes from your grandchild’s school—anything that clearly demonstrates the active role you’ve played in your grandchild’s life so far. This will help your attorney craft the best legal argument within the facts, to help support your petition.
Remember that the burden of proof is on you to prove that spending time with you is in the child’s best interest and that the loss of the grandparent-child relationship would cause harm to the child in specific and demonstrable ways.
The preponderance of the evidence must document what you’ve done to build and maintain a significant relationship with your grandchild. For example, if you’ve been a full-time caretaker for your grandchild, you may be able to prove your relationship with them is crucial to their physical and mental well-being, or, depending on the circumstances, that you may qualify to be declared a psychological parent.
Be aware that general, vague descriptions of alienation from a grandparent who wasn’t already regularly spending time with grandchildren typically are not sufficient to convince the courts to override parental decisions regarding time spent with grandparents.
Consult a New Jersey family law attorney about your rights as a grandparent
If you need help petitioning for grandparent visitation rights in New Jersey, or if you need to respond to a grandparent visitation petition, reach out to the experienced team at Jacobs Berger, LLC.
We know how complicated dynamics can be within an extended family, and we take pride in protecting our clients’ rights. We practice family law because we believe each case presents our clients with a unique opportunity to create a better future for their families, and we specialize in providing personalized legal solutions.
Contact us today to schedule your strategy session.
