Nearly 3 million children in the U.S. are being raised by their grandparents. Many more share a close, loving relationship. Unfortunately, some grandparents are unfairly cut off from their grandchildren after a divorce, while others feel compelled by circumstances to step in and ask the Court for child custody.
As our Freehold child custody lawyers can explain, grandparents can petition the Court for the right to visitation or custody, but their success will depend on numerous, case-specific factors.
U.S. and New Jersey law gives parents the legal right to make decisions regarding the care and well-being of their children. There are sadly cases wherein co-parenting disputes or arguments between parents and grandparents can put the grandparent-child relationship in jeopardy. That doesn’t necessarily mean a grandparent will be awarded visitation. There are several factors the Court considers.
To prevail in a grandparent visitation petition, it’s not enough to establish that such visits are in the child’s best interests, which is the main standard on most questions of child custody and parenting time. One must also establish that the child will be harmed if grandparent visitation is denied. This is a high proof burden, which is why such petitions are only recommended if you’re working with a skilled New Jersey family law attorney.
Too often, we see grandparents make the mistake of not formalizing custody agreements they make with the child’s parents. Without that, a parent could come in at any time and assert their right to remove the child from the grandparent’s care and even deny them visitation from that point forward. It should be noted the longer a child is in a grandparent’s care - whether the agreement was formalized or not - the stronger the grandparent’s case to assert visitation and possibly custody rights.
A Child’s Best Interests
Proving that grandparent visitation is in the best interests of the child means the Court will analyze a range of factors that are going to be case-specific. For example, a grandparent’s closeness with a child will almost certainly be a central factor in a petition for visitation after divorce, but may be less so if one of the parent’s died.
If a grandparent was one of the child’s regular caregivers or primary caregivers prior to a divorce, the Court may presume that arrangement should continue, unless the opposing parent can show good cause for why it’s not in the child’s best interest.
Financial support given by the grandparent to the grandchild may be weighed, as well as the grandparent’s physical and mental fitness.
Logistics can also be a factor when Courts are considering the best interests of a child. For example, if the grandparent lives a considerable distance from the parent(s), the Court may be less inclined to grant custody or visitation, as it might interfere with the child’s relationship to their parent(s). Along these same lines, if the grandparent’s relationship with the child’s parent is hostile, the Court may be wary of granting visitation or custody. Exceptions may be possible in cases where it’s determined the opposing parent has been abusive to the child. Otherwise, parents are given a great deal of discretion in who their child sees - or doesn’t - and how often.
Establishing Harm
Grandparents seeking visitation must also establish harm, but that doesn’t necessarily mean physical. It could mean significant emotional or mental harm - especially if the bond they share is already a strong one. If a child’s parents are going through a divorce, the Court will recognize the emotional toll this will take on the child, and will want to avoid further emotional damage that could be caused by cutting them off from their grandparents.
The Court will be looking for evidence in the form of concrete, tangible examples.
If it is at all possible to work out an arrangement with the parents without going to Court, that can be best for everyone. If these talks completely break down, that’s when you can seek legal advice.
Fighting for Custody of a Grandchild
Grandparents can ask for custody of their grandchildren, but it is a much more involved process. It involves proving to the Court that both parents (or the sole surviving parent) is not fit to raise the child. This can be an emotionally wrought process, but it can be necessary in cases where the children have been or may in the future be harmed by remaining in the care of their parent(s). Claims like these most often arise in cases involving substance abuse, incarceration or physical abuse.
Speculation is not enough to prevail in such a claim. Here again, clear examples, concrete evidence and possibly an expert witness or two may be required.
Our dedicated family law attorneys in Freehold, NJ can help you determine your legal rights and the next best step.
Call Rozin|Golinder Law, LLC today at (732) 810-0034 for a free and confidential consultation.