Grandparents’ Rights Are Not Automatic

When the core of a nuclear family changes, either through divorce, death, or other means, it is not only the parents and child who face major adjustments, but also the extended family, including grandparents. Grandparents may have many privileges, but they have no automatic rights when it comes to visitation or custody of their grandchildren. In other words, the surviving or custodial parent or legal guardian can grant or deny grandparents contact with their grandchildren.

When relationships between parents and grandparents become contentious and the latter are denied access to their grandchildren, they can petition the court for visitation rights. The onus, however, is on the grandparents to prove that visitation with their grandchild is in that child’s best interest.

In New Jersey, courts seek to balance the constitutional right of parents to raise their children without governmental interference with the best interests of the child. In doing this, courts will look at the following when considering a grandparent’s petition for visitation:

• The history of the relationship between grandparent and child;
• The relationship between the grandparents and the child’s parents or legal guardian
• How long it has been since the grandparent and child last had contact;
• How the parents or legal guardian relationship with the child could be affected by the grandparents’ visitation with the child;
• How the visitation could impact any time-sharing arrangements between estranged parents;
• Any history of abuse (physical, emotional, or sexual) or neglect by the grandparent(s); and
• Any other factor relevant to the child’s best interest.

Courts also seek to ensure the grandparents, when filing a petition for visitation, are acting in good faith. In considering the petition, the court focuses on potential harm to the child rather than possible harm to the grandparents. Accordingly, grandparents must demonstrate a specific, identifiable harm that will come to the child if their visitation is denied.

There are options for grandparents seeking visitation with their grandchildren. The first is mediation where the grandparents and the child’s surviving or custodial parent or legal guardian seek to come to an agreement on terms of visitation. The second involves the grandparents filing a complaint in New Jersey Superior Court and letting the court decide on the matter.

Because these cases can be complex, it is in everyone’s best interest to seek the advice of a qualified Family Law attorney before petitioning for court intervention.