- April 7, 2021
File Under: Custody
Throughout the United States, there are over 2.7 million grandparents who are raising their grandchildren. Sometimes, individuals do not have ready access to the grandchildren, or they feel that they need to involve the court to gain custody. When that happens, grandparents have the right to file a motion in court to have a hearing in front of a judge.
Grandparent Visitation Is Not Always a Clear-Cut Issue
Grandparents can become as attached as anyone to their grandchildren. If their children’s relationships end, their time with their grandchildren could be at risk. People will often ask a family lawyer whether they also have the right to visit with their grandchildren. The issue is not always straightforward, but grandparents seek visitation rights.
New Jersey gives grandparents legal rights when it comes to their grandchildren. However, the United States Supreme Court interprets grandparents’ visitation rights a little less broadly than New Jersey law, meaning that grandparents will need to work with a family law attorney to make arguments that the court would accept before granting them access to their grandchildren.
Grandparents Must File a Petition
The key is that grandparents must ask the court for these rights. This means that they must file their own petition with a judge with the help of a family law attorney. Whether the grandparents are granted visitation time is a decision that the court will make on its own, and it does not necessarily involve the parents. The law, at least, allows grandparents to ask directly on their own, and it gives them standing to go into court.
Grandparents Must Demonstrate Harm if They’re Not Able to See Their Grandkids
In New Jersey, the court requires grandparents to demonstrate that the visits are necessary to avoid harm to the child. Harm could mean that the child would be deprived by having his or her grandparents removed from his or her life. In this case, harm does not necessarily mean physical. The court is interested in the grandchildren’s emotional state and how it would be affected.
The biggest factor that a judge would consider is how time with his or her grandparents would help the child’s life. Alternatively, if the child would lose his or her relationship with his or her grandparents, the court could consider visitation time to avoid harming the child. The child is already going through significant life changes, and the court wants to make the transition less hard on the child. Many times, a judge would feel that cutting off access to the grandparents whom the child has already known would make a bad situation worse.
Is Grandparent Visitation in the Best Interests of the Children?
Grandparents would also need to show the court that time with them is in the best interests of the children. Courts would look at a grandchild’s prior relationship with his or her grandparents and what his or her life would be like going forward. For example, the court may not order visitation time if the grandchild did not have much of a relationship with his or her grandparents before a divorce. However, the court may look at it differently if a parent died as opposed to a divorce. Then, a judge may view establishing a relationship with his or her grandparents as conducive to lending more stability to the child’s life.
If the grandparent was a primary caregiver to the children before the divorce, the court would have a presumption that they could still have custody afterward. Then, it would be up to the parent opposing the request to show why it is not in the children’s best interests. Otherwise, the burden of proof would be on the grandparents to demonstrate that it would be the best arrangement for the children.
Best Interests Could Also Include the Logistics
Showing a relationship and how it will help the child is only part of the best interests’ consideration. The court would then consider the logistics of the grandparents spending time with the children and how it would affect their best interests. Courts may not want to award grandparent visitation if it would interfere with a child’s relationship with a parent. For example, if the grandparents had a hostile relationship with one or both parents, courts may be hesitant to order a formal role for the grandparents. They may also be wary if time with a grandparent would mean that one of the parents has little time to see his or her own child. Courts try to give parents great deference.
As you can see, the larger the role that the grandparents played before the separation, the more likely it is that the court would grant them some sort of visitation rights. Working with a divorce lawyer, they would need to show why spending time with their grandchildren would benefit the children as opposed to harming them. The court is looking for concrete and tangible arguments for their best interests’ evaluation.
Grandparents May Seek Custody
Grandparents could also request custody of the children, although that will be a much more difficult process. However, sometimes, it would be entirely necessary for grandparents to step in to obtain custody if it is in the best interests of the children. This is not a decision that grandparents should take lightly.
In a custody case, grandparents would need to show that both parents are not fit to raise the child. This would present difficulties because a parent is claiming that his or her own child is an unfit parent. However, grandparents may be left with no choice if there is a history of physical abuse or dependency on substances. Often, it is grandparents who end up having to assume responsibility for the children, both to protect them and enable them to thrive.
The court would consider a petition for custody from the grandparents, but it may be an emotional and raw hearing. The first thing that a grandparent would need to prove through a family lawyer is that the child’s current or proposed living arrangement is either unsafe or not supportive. Possible danger to the child may be the most effective argument that a court would consider. However, grandparents must be careful about coming into court and speculating. They should bring concrete evidence and, possibly, even expert testimony.
The Best Solution Is One That Avoids Court
Most divorce attorneys would encourage grandparents to try to work with both parents before they file anything in court. Hearings can be tough and acrimonious and leave a lasting strain on a relationship. Often, many of these visitation issues can be worked out with some discussion between all the parties. In fact, many parents are happy to have the help that grandparents can offer, and they are not extremely resistant to grandparents spending time with the children.
While you can, and should, consult with a divorce attorney, the best thing for everyone involved is to come up with an arrangement without the involvement of the courts. Sometimes, there is a power struggle between the parent and the grandparent-in-law that cannot be resolved with any amount of talking. This is when you, as grandparents, could avail yourself of your legal rights.
If you are having issues with getting access to your grandchildren and want to work to establish your legal rights, contact us at Lawrence Law at (908) 645-1000. We have offices in Watchung and Red Bank, and our divorce lawyers could help you explore legal options to work through your situation.