As a grandparent, remaining a significant part of your grandchild’s life is paramount. Unfortunately, after a divorce, there are times when the custodial parent may try to get in the way of this. If you believe you’re being wrongfully denied visitation as a grandparent, our team of Sussex County grandparents’ rights lawyers stands ready to help. Contact Gruber, Colabella, Thompson, Hiben & Montella for assistance today.
Understanding Your Rights as a Grandparent in New Jersey
New Jersey law acknowledges the vital role grandparents often play in the lives of their grandchildren. While parents generally have the constitutional right to make decisions about who their children associate with, that does not mean grandparents are without recourse. Under N.J.S.A. 9:2-7.1, grandparents (and siblings) may petition the court for visitation if they are being denied access to their grandchild.
The Harm Standard: What You Actually Have to Prove
The statute itself says an applicant must show that visitation is in the child’s best interests. New Jersey courts, however, require something considerably more demanding first.
In Moriarty v. Bradt, 177 N.J. 84 (2003), the New Jersey Supreme Court held that because the statute infringes on the fundamental right of fit parents to raise their children, a grandparent must first prove by a preponderance of the evidence that denying visitation would result in harm to the child. Best interests is not the threshold question. A court never reaches the statutory best-interest factors unless the grandparent clears the harm hurdle first.
This is a high bar, and it is worth being candid about. Wanting to spend time with a grandchild is not enough. Neither is showing that visitation would benefit the child. The question is whether the child will be harmed without it. As a practical matter, meeting this burden often requires expert testimony, because a grandparent is rarely in a position to testify to the psychological effect that losing the relationship will have on the child.
Certain circumstances make the showing more achievable. Courts have found that the death of a parent, combined with a history of regular, meaningful contact, can satisfy the harm standard. A grandparent who served as a caregiver or played a central role in the child’s daily life is in a stronger position than one who saw the child occasionally.
Once the harm showing is made, the presumption in favor of the parent’s decision is overcome. Only then does the court turn to the statutory factors and set a visitation schedule it finds to be in the child’s best interests. In Major v. Maguire, 224 N.J. 1 (2016), the Court confirmed this two-step framework and addressed what a grandparent must plead at the outset to avoid early dismissal.
Keep in mind that not every petition is granted. The court carefully weighs the parents’ rights against the evidence presented by the grandparent. That’s why it’s essential to work with a family law attorney who understands how to frame your relationship in the terms the court actually applies.
How to Apply for Visitation Rights As a Grandparent in NJ
In New Jersey, grandparent & sibling rights are a major priority for the family members of a splitting couple. Grandparents and siblings can apply for visitation rights for a child who is residing in New Jersey. You can file an application in such cases that a family is intact or the family splits because of separation, divorce, or death. Once the threshold showing of harm has been made, the court turns to the statutory factors in setting a schedule. Those factors are as follows:
- The nature of the relationship between the child and the person requesting visitation
- The relationship between the person seeking visitation and each of the child’s parents—or the guardian or individual currently caring for the child
- How much time has passed since the child last had contact with the applicant
- How the requested visitation might affect the relationship between the child and their parents or current caregiver
- If the parents are separated or divorced, the existing custody and visitation arrangement between them
- Whether the person requesting visitation is acting in good faith in bringing the request to court
- Any past incidents involving abuse or neglect—whether physical, emotional, or sexual—by the applicant
- Any additional factors that may be relevant to the child’s overall well-being
Can Grandparents Get Custody in New Jersey?
Yes, in certain circumstances, grandparents can be awarded custody of their grandchild in New Jersey. However, custody is not granted lightly, and the courts will always begin with a strong presumption that a child’s biological or legal parents are the most appropriate custodians.
For a grandparent to be awarded custody, there must be clear and convincing evidence that the parents are either unfit or unable to care for the child. This can include situations involving:
- Substance abuse
- Mental illness
- A history of domestic violence or child abuse
- Neglect or abandonment
- Incarceration
- Death of one or both parents
In such cases, a grandparent may petition the court for legal and/or physical custody, especially if the grandchild has already been living with them or if no other suitable guardians are available. Where a grandparent is caring for a child but a full transfer of custody is not appropriate, kinship legal guardianship may be an alternative worth discussing.
The court’s primary consideration remains the best interest of the child, which includes evaluating the child’s safety, emotional bonds, school stability, and the ability of the grandparent to provide a safe and loving environment. If the grandparent has been a consistent caregiver, or if the child expresses a strong preference (depending on their age and maturity), these factors can strongly influence the court’s decision.
Contact Our NJ Grandparents’ Rights Lawyers
The lawyers here at Gruber, Colabella, Thompson, Hiben & Montella are steadfast advocates for grandparents’ rights in New Jersey. If you’re a grandparent seeking visitation or custody, please don’t hesitate to speak with our knowledgeable and skilled New Jersey family law attorneys today. Contact us for a free consultation.
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