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In many divorces, the parties hate each other so much that they try to get back at each other by refusing to permit the grandparents to visit with the children. For many of our senior citizens, seeing their grandchildren is the most cherished part of their life. In many cases the courts will grant grandparents visitation rights even if the custodial parent objects.
Grandparent visitation is a very rapidly expanding field of law. The courts are very reluctant to deny a grandparent the right to visit with their beloved grandchildren. In general, grandparents must apply for visitation with grandchildren. The grandparent must file motion of complaint for visitation with the court.
The court will then refer the case to custody mediation. At the mediation, a court-appointed mediator will try to get the parties to agree on a visitation schedule. If the mediation session is not successful, then the case will be referred to a judge. The court will then formulate a reasonable visitation schedule.
In only the most extreme cases will grandparent visitation be denied. In most cases, it is in the best interests of the children to have visitation with all of their grandparents. Once a visitation schedule has been established, it must be modified like any other visitation schedule.
New Jersey has a statute that specifically addresses this issue. In fact, the statute addresses visitation by siblings as well. That statute is printed below:
a. A grandparent or any sibling of a child residing in this State may make application before the Superior Court, in accordance with the Rules of Court, for an order for visitation. It shall be the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best interests of the child.
b. In making a determination on an application filed pursuant to this section, the court shall consider the following factors:
The relationship between the child and the applicant;
The relationship between each of the child's parents or the person with whom the child is residing and the applicant;
The time which has elapsed since the child last had contact with the applicant;
The effect that such visitation will have on the relationship between the child and the child's parents or the person with whom the child is residing;
If the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;
The good faith of the applicant in filing the application;
Any history of physical, emotional or sexual abuse or neglect by the applicant; and
Any other factor relevant to the best interests of the child.
c. With regard to any application made pursuant to this section, it shall be prima facie evidence that visitation is in the child's best interest if the applicant had, in the past, been a full-time caretaker for the child.
What Does All Of That Mean To Me, The Loving Grandparent Of A Wonderful Child(ren)?
Let's do this one step at a time.
Paragraph a: If your grandchild lives in New Jersey (whether or not the parents are in the process of a divorce) you may file an application with the Superior Court, in the County in which the child resides. You have the burden of proving, by a preponderance of the evidence (or, that it is more likely than not), that the requested visitation is in the best interests of the child.
Paragraph b: In making its decision, the Court must consider the eight factors listed. No one factor is given any more weight than the others. Rather, each is factored into the Court's determination, and given the weight that the Judge assigned to the case determines to be appropriate under the circumstances of your case.
Paragraph c: If, during the child's life, you were the full-time custodian of the child, your chances of succeeding have just grown immeasurably. This is especially true the more recently you cared for the child.
Okay. I Think I Understand All of That. But How Do I Go About Seeing My Grandchildren?
Naturally, the first step is to try to speak to the primary custodial parent, and resolve the issue amicably on your own. You would be surprised what can be accomplished with a simple letter or phone call.
Yeah, But My Child's Spouse Won't Speak To Me.
Under these circumstances, you will need to file an application with the Superior Court, in the County where the child lives.
How Do I Do That?
As with most issues in the Court, you have choices. Naturally you can hire an attorney to assist you in this process.
Okay, Then What.
The Court will provide a copy of your application to the parents, and will send them, and you a notice to attend a hearing.
What Happens At The Hearing?
Generally, it begins with the Judge asking for some preliminary information from all of the parties. Where do you live, etc. Then, he will ask the parents if they agree with your application, or if they have objections.
If they agree, the next step is to devise an appropriate visitation schedule, with the Judge's assistance. Once determined, it will be in the form of a Court Order. You and the parents must abide be the Court's Order, or face sanctions.
If they do not agree, they will have to put their specific reasons for wanting to deny visitation "on the record." This means that they will have to tell the Judge exactly why they don't think you should see the children.
Assuming That They Tell the Judge They Disagree, What Happens Next?
Good question. Each Judge handles this next phase somewhat differently. The differences also take into account some of the factors listed above, and the parents' reasons for denying you access to the children. Some Judges will send you to mediation.
Some Judges do not like mediation in the grandparent visitation realm, and move the matter directly into some form of visitation evaluation. Generally this is done with the assistance of a Court-appointed psychologist or other mental health professional.
Psychologist? That Sounds Expensive.
It can be. Generally, many of the psychologists work on a sliding scale, though not always. Sometimes, they work on a reduced fee based on a contract with the Court.
But Who Pays For It?
Excellent question. Again, Judges handle this differently, depending on the facts of the case. Sometimes, you will be required to front the money for the evaluation, since it was your application that initiated the process. Sometimes, all parties will be required to contribute to the fees, on the theory that money should not be a stumbling block to a legitimate application. Either way, the Judge usually makes this decision "without prejudice." That is, he specifically reserves his right to reallocate the fees at the conclusion of the matter.
What Happens After The Evaluation?
The evaluator makes recommendations to the Court. If the recommendations are acceptable to the parties, you get a visitation Order.
If the recommendations are not acceptable to one party or the other, the dissatisfied party is entitled to request a trial.
Yes, a trial. Each party will present evidence, including the report and testimony of the evaluator.
Grandparents will only be given visitation against the wishes of a parent if they can prove by a preponderance of the evidence that such visitation is necessary to avoid harm to the child. Moriarty v. Bradt, 177 N.J. 84, 114-15 (2003).
New Jersey Statute 9:2-7.1. Visitation Rights for Grandparents or Siblings
A Bill was introduced to the legislature on March 2, 2006 which would essentially repeal the above grandparent visitation statute. The Bill's Statement describes its purpose as repealing N.J.S. 9:2-7.1 which allows a sibling or grandparent of a minor child to make an application in Superior Court for visitation rights.To date, the bill has not been passed.