The relationship between grandparents and their grandchildren has become increasingly complex over the past few decades. More and more, grandparents are looking to the courts to obtain visitation time with their beloved grandchildren. Unfortunately, the rising divorce rate, soaring single parenthood, increased alcohol and drug use, and the financial pressures of living in New Jersey have all altered the entire New Jersey family structure.

New Jersey's Grandparents' Visitation Statute, N.J.S.A. 9:27.1, allows a grandparent residing in New Jersey to make an application for visitation. The grandparent must prove that visitation is in the best interests of the child. In making this determination, the court must consider eight factors, including:

The starting point for any grandparent visitation case is whether it will serve the best interests of the child. Courts carefully consider the length of the relationship and the frequency of actual contact as primary evidence that the relationship should be preserved. Finally, the court will look at the "totality of the circumstances" when it rules on any grandparent visitation application.

A grandparent has to file an application with the county court house and request visitation with the grandchildren. The complaint will then be served on the parent(s). Thereafter, the court will set the case down for a case management conference. At this court hearing, the judge will make a sincere attempt to try to mediate a settlement. The judge may also refer the case to mediation. Mediation is the hot new trend in grandparent visitation cases. Mediation is an excellent way to resolve bitter grandparent visitation disputes. The court may also set the case down for a plenary hearing. At the hearing, both parties will be permitted to present evidence that supports grandparent visitations or evidence that proves that grandparent visitation would not be in the child's best interest.

If the case is sent to mediation, it will be heard in approximately 30 to 60 days. The mediator is usually a member of the probation department. Lawyers usually are not permitted to attend the mediation session. If the mediation is not successful, the case will be sent back to the family court for a disposition.

When a judge decides a case, it is on the basis of evidence that is formally presented to the court. Evidence consists of things, such as records and other documents, and testimony from witnesses you call to testify for you. A grandparent will have to prove that it is in the best interests of the child. To show best interest, you will need to address the following factors:

You will also need to show that visitation is in your grandchild's best interest. Photographs and videotapes showing you having fun with your grandchild are a good way to help you establish the nature of your relationship. Other adults who have seen you spend quality time with your grandchild make good witnesses for this purpose. You may also want to have a psychologist or a therapist to testify about the importance of your grandchildren having a relationship with you.

It is not uncommon for a nasty custody battle to arise between the natural parent and the grandparents if the custodial parent should die. In the case of Watkins v. Nelson, 163 N.J. 235 (2000), the New Jersey Supreme Court held that disputes should be settled in favor of the natural parent unless the third party is a "psychologically parent," a biological parent is unfit, or if exceptional circumstances exist. There is a presumption of custody in favor of the parent.

In the Watkins case, the father began seeking custody shortly after the mother died in a car accident twelve days father giving birth. The grandparents never alleged that the father was unfit parent, but only that they had become psychological parents to the child, who had been living with them since the mother's death. A crucial issue decided by the Supreme Court was the standard to be applied, the best interest of the child test versus the stand of termination of parental rights. The court ruled that upon the death of the custodial parent, in an action for guardianship of a child, a presumption exists tin favor of the surviving biological parent. The presumption can be rebutted by proof of gross misconduct, abandonment, unfitness, or the existence of exceptional circumstances, but not by the simple application of the best interest test.