Grandparent and Third-Party Rights to Custody or Visitation
Extended families are important, and New Jersey law strives to keep children in contact with grandparents and other loved ones. Nevertheless, the state must also consider the rights of parents to raise their children as they see fit, and this might include not allowing children to visit grandparents or other adults. Read on to better understand when grandparents and others can seek custody or visitation.
Grandparent and Sibling Rights to Visitation
According to New Jersey statute 9:2-7.1, grandparents and siblings can obtain visitation if they offer proof by a preponderance of evidence that visitation is in the child’s best interests. The law outlines what factors a judge must consider:
- The child’s relationship with the grandparent or sibling
- How much time has passed since the child has had contact with the applicant
- The relationship of the applicant with the child’s parents or guardians
- Whether the applicant has been abusive or neglectful to the child
- The time-sharing agreement between the child’s parents
- The applicant’s good faith in making the request
Grandparents and siblings must then show that the child will be harmed if they do not receive visitation. This higher standard is necessary to protect a parent’s ability to raise the child without interference from others.
Other Third-Party Rights to Visitation
Other adults might wish to have visitation, including step-parents or same-sex partners. The key is whether the adult served as a “psychological parent” to the child. No New Jersey law grants these third parties a right to visitation. Nevertheless, a court can order visitation if the circumstances warrant it. Accordingly, the court will look to the following factors:
- Whether the adult and child lived in the same home at any point
- Whether the child’s parent has fostered or consented to the child’s relationship with the adult seeking visitation
- Whether the adult seeking visitation has taken significant responsibility for the child’s education, welfare, and development, although this responsibility does not need to be financial
- Whether the adult served in a parental role long enough for the child to develop a significant bond
If the judge finds that the adult has served as a psychological parent, then the adult stands on equal footing with the biological parent. The judge then must decide whether to grant visitation based on the best interests of the child as illustrated in N.J.S.A. 9:2-4.
Custody Rights of Grandparents and Others
When it comes to custody, not visitation, grandparents and others face a much higher hurdle. Generally, New Jersey law presumes that parents should have custody of their children, and the only way you can get custody will be to show that the child’s parents are unfit. To prove unfitness, you will need to show that the children are at a significant risk of physical or emotional endangerment. Some common examples include:
- Children are abandoned
- Parents suffer from drug or alcohol addiction
- Parents suffer from mental health problems
- Children are abused or neglected by their parents
Proving unfitness is not easy. Some situations, such as shocking physical abuse or outright abandonment, are easy to prove, but many situations fall into gray areas. For example, a parent might be suffering from drug or alcohol addiction but be making a good faith attempt to cope. This situation, though not ideal, might not rise to the level of parental unfitness.
However, you have a better chance of getting temporary custody if you can convince the child’s parents to place the child with you as they try to get their life pulled together. For example, you might watch the children while the parent goes into rehab or seeks mental health treatment. In this situation, you can work with the parent, the court, and the Department of Child Protective Services (if they are involved) to gain custody of the children.
Speak with a New Jersey Family Law Attorney
Family law is complicated, and seeking visitation or custody is particularly confusing. Only a qualified attorney can adequately assess your situation and offer advice tailored to the facts of your case. For a consultation, contact Elena K. Weitz, Esq. today.