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Grandparent Visitation in New Jersey
When parents divorce, are living separate and apart, or are deceased, there is often a residual affect on the relationship between the children and their grandparents. If circumstances arise where you are not exercising visitation with your grandchildren, and you cannot otherwise work out a visitation agreement between yourself and the parents or guardian, then you may seek visitation through the Family Court. In this regard, a Complaint for Grandparent Visitation must be filed, and you must prove by a preponderance of the evidence, that visitation will be in your grandchildren's best interest. If a parent or parents, or the child's guardian objects, a hearing will be heard, and testimony will be given. In determining whether visitation will be granted, the Court will consider the factors set forth in the Grandparent Visitation Statute. That statute states as follows:
N.J.S.A. 9:2-7.1. Visitation rights for grandparents or siblings
After you file the Complaint, the Court may order you and the parents or guardians to attend mediation with a court appointed mediator, who will attempt to help the parties reach an agreement with regard to visitation with your grand children. If an agreement is reached a Consent Order may be entered into between you and the parents, and which will become a binding Order of the court.
If an agreement cannot be reached, then a hearing will be scheduled. Keep in mind, that if, in the past, you were a full-time caretaker of the children, then the Court will presume that visitation with your grandchildren is in their best interest. However, the parents or guardians have a right to challenge this presumption.
Because of recent developments in our case law, the issue of grandparent visitation has become a very fact sensitive analysis, with the courts giving great deference to the wishes of the parents.
In a recent case, Wilde v. Wilde, 341 N.J.Super. 381, 775 A.2d 535 (App. Div. 2001), a parent challenged the constitutionality of the New Jersey Grandparent Visitation statute, after the children's grandfather sought visitation. Although the appellate court held that the statute, as written, was not constitutionally invalid, the appellate court found that the grandparent statute mandates that courts give deference to the parents' objections to visitation, and to their beliefs concerning the best interests of their child.
The appellate court further made it perfectly clear, that a grandparent's statutory right to bring a parent into court must be carefully scrutinized, particularly where the parent's fitness is not disputed. The appellate court further went on to find, that there is a burden on the grandparent(s) to make every effort to resolve the visitation matter without resorting to acrimonious litigation. In this regard, the court stated that before engaging the courts to seek visitation, grandparents should be obligated to make substantial efforts at repairing a breach in the relationship with the parents, and ordinarily litigation should not be threatened until and unless visitation has been denied with finality.
Further, the Wilde court emphasized, that if litigation becomes necessary because a parent or parents have persistently resisted the grandparents' respectful and patient overtures for visitation, it must be conducted with restraint, or in other words, the grandparents must refrain from denouncing, demeaning, and impugning the parent's character.
Given the recent case law with regard to grandparent visitation, the first course of action should always be an effort to reach an amicable agreement with the parents or guardians of your grandchildren, on the issue of visitation. A Complaint should only be filed if all good faith efforts have failed in reaching a visitation arrangement.
As always, a family lawyer should be consulted to aid you in determining whether litigation should be commenced, and what further efforts, if any, should be pursued before resorting to litigation.
If the divorce is being filed under one of the seven fault grounds (including extreme cruelty, adultery, abandonment, substance or alcohol addiction, institutionalization, deviant sexual conduct and incarceration), the 18 month separation period, required for a no-fault divorce, is waived. However, each ground for divorce has its own stipulations.
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