Do Grandparents Have a Legal Right to See Grandchildren After a Divorce?

If you’re a grandparent who is denied the ability to see your grandchildren, you may wonder if grandparents can sue for visitation of grandchildren? If you live in New Jersey, you may have grandparents’ visitation rights to keep you connected to your grandchild. Depending on the facts and how a judge views them, you could receive visitation rights and be able to spend time with your grandchildren. If you need help seeing your grandchildren, family law attorneys can facilitate negotiation between you and the biological parents of your grandchildren and, if appropriate , file a legal action for you.

Some Reasons Why Grandparents Denied Visitation with Their Grandchildren:

Several circumstances can lead to grandparents’ getting cut off from their grandchildren. They include:

• Divorce. Your child may be divorced or in the process of divorcing. You should discuss with your child ahead of time when/if you can see your grandchildren given the visitation schedule in place or being discussed.
• Death or incarceration. Your son or daughter may have died or is incarcerated, and the other parent is not on good terms with you.
• Mental illness or substance abuse. =One of the parents may be mentally ill or suffer from substance abuse, and this state of mind results in their not wanting you to spend time with your grandchildren, whether that logic is rational or irrational.

Options Available to Secure Grandparents’ Visitation Rights:

Before turning to the courts, you should always try to resolve your dispute without legal action. No matter the family law issue, negotiation can be the preferred way to work out a solution everyone can accept. When relationships are strained, you should seek help from an attorney skilled in negotiation and mediation. An experienced attorney can try their best to help you and your children come to agreement about visitation time with your grandchildren.

However, when you’re at an impasse, you may need to rely upon the legal expertise of a family law attorney who can represent you in court to secure some form of grandparents’ visitation if the circumstances of the family dynamic align with New Jersey Law.

Can a Parent Deny a Grandparent Visitation?

Generally, the rights of a biological parent outweigh those of a grandparent. A parent can deny you time with their child; but if the facts are in your favor, a judge may force a parent to accept your ability to spend time with your grandchild.

If it is determined that in your particular circumstance it would be appropriate to file a formal court action to secure your rights to see your grandchild, the judge will follow New Jersey case law, statutes, and also focus on the best interest of the child but will give deference to the biological parent’s reasons for their objection. That said, the Judge will also try to find ways for you to come to a mutually acceptable compromise with the biological parents.

Can Grandparents Sue for Visitation of Grandchildren?

Every state has its own grandparents’ visitation statutes that govern the answer to this. New Jersey’s statute does make it difficult, although with the right set of facts it could be plausible.

State legislatures understand that, despite deference to the biological parents rights, , it can be in a child’s best interests to have grandparents in their lives. Under NJ Rev Stat §9:2-7.1, a grandparent living in New Jersey can file in Superior Court for a visitation order. The court can’t approve visitation unless the grandparent shows the child may suffer possible harm without them, among other pre-qualifications needed. Assessing whether the grandparents have a viable court case should be made early on to determine the likelihood of success on the merits of the case before anyone spends extraordinary time and counsel fees.

Factors that Impact the Court’s Decision on Grandparents’ Visitation Rights

The judge will try to ensure the child’s life is stable, safe, and improved, not disrupted, if the grandparents were to have visitation. There are numerous factors that a judge will weigh in the process of making a decision about grandparents’ visitation rights. A judge will want to know whether a grandparent can provide for their grandchild’s emotional and physical needs. To protect the child, the court will investigate also whether the parents or grandparents are involved with substance abuse or domestic violence.

When making a decision about grandparents’ visitation rights, the judge must consider:

• The relationship between the grandparent and child. If the grandparent successfully cared for the child full-time, the burden would be on the parent to show visitation is not in the child’s best interests.
• The relationship between the child’s parents, or the person with whom the child lives, and the grandparent
• The effect the proposed visitation will have on the relationship between the child and the child’s parents, or the person with whom the child lives
• The parents’ scheduled time with the child if the parents are divorced or separated
• How much time passed since the grandparent spent time with the child
• Any history of neglect or physical, emotional, or sexual abuse of the child by the grandparent
• The grandparent’s good faith in making the request
• Any other factor concerning the best interests of the child

Visitation Rights if Your Grandchild Was Adopted
Grandparents’ visitation rights are limited if you lost your connection to your grandchild because he or she was adopted from the biological parents . You may seek visitation rights only if a step-parent adopts him or her. Otherwise, if biological parents’ legal rights are terminated, grandparents also lose their rights to maintain a relationship with their grandchild.

How a Grandparent Can Be Considered a Psychological Parent

You will have a stronger argument for grandparent visitation rights if you can establish that you acted as a psychological parent of your grandchild, which means also acting as the parent for an extended amount of time or at minimum, a co-parent. If the specific facts of your case align with New Jersey law, you could be granted visitation or even custody rights.  A judge will look at your parenting role and whether or not you and the child’s parents intended for you to act in that role. If both you and the parents intended this role, there’s a better chance you will be given visitation and possibly custody rights.

Judges deciding these issues recognize that children should maintain ties that connect them to adults who love and provide for them. Another factor in the decision is if you function as a psychological parent and the judge determines that without your presence, there is potential serious psychological or physical or harm that could come to your grandchild.

If you want to establish a psychological parenting claim, you need to show:

• The parent (your child) consented to and encouraged your parent-like relationship with your grandchild.
• You lived with your grandchild in the same household.
• You had significant responsibility for the child’s care, education, and development, including supporting the child (financially or otherwise) without expecting to be repaid.
• You played a parental role long enough to create a bonded, dependent, parent-child type of relationship.
• The child would be harmed without the continuing contact with the grandparents

All of these elements must be proven in order for you to be considered a psychological parent.

If you are, the court would decide whether giving you visitation or custody rights is in your grandchild’s best interests. If you can prove at least some of these issues, it will still strengthen your claim that spending time with your grandchild is in their best interest. Most grandparent rights cases should be viewed with an eye towards whether there is an element of phycological parent involved as framing the argument in this way provides a much better chance at success than a straightforward grandparent visitation case when the biological parents object to you seeing your grandchildren.

Get the Legal Help You Need to Gain Grandparents’ Visitation Rights

If you’re a grandparent or parent and you’re dealing with a grandparent visitation issue, contact Men’s & Fathers’ Rights Divorce Lawyers by Schultz & Associates, LLC.

We’ll talk about how New Jersey grandparents’ visitation law applies to your situation and what factors can influence the potential for you to obtain visitation rights.

We know that the best visitation arrangements not only consider the concerns of everyone involved, but also keep the children’s interests at the center.

Find out what options are best for you, your child, and your grandchildren.

Call us at (201) 880-9770 to schedule an initial consultation/ discovery session.

Carrie S. Schultz, Esq. – author

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