Legal Rights of Grandparents in Divorce

Grandparents who have spent considerable time with their grandchildren may feel that they will lose their right to be around them after a divorce is finalized. This is a valid concern, especially when there is a lack of harmony between the two parents. A grandparent has no inherent right to see their grandchildren after a divorce. They must prove that there are some extenuating circumstances. If the parents disagree on whether the grandparents can see the grandchildren and how much time they can spend with them.

In the past, New Jersey courts would use the standard best interest of the child test to determine whether the grandparents had visitation rights. The United States Supreme Court made a major sea change in the law in the case of Troxel v. Granville. The Court found that parents have a constitutional right to determine who may spend time around their child, including the grandparents. This is a matter of due process under the 14th Amendment to the United States Constitution. The result of this case took away a grandparent’s ability to sue to see the grandchildren for reasons other than the child could be at risk of harm if the grandparents are not allowed to see the grandchildren. 

New Jersey Has a Strict Law About Grandparent Visitation

In the wake of Troxel, a New Jersey Supreme Court case, they laid out the law of grandparent visitation in the state. Generally, the parents’ constitutional rights about their children would take priority over anything else. A grandparent can still file a lawsuit to see the grandchildren, but they must identify a specific harm for the child if their lawsuit request is denied. For example, grandparent visitation rights may be granted when one or both parents are struggling with substance abuse issues and someone else needs to keep a closer eye on the children to make sure they are safe. A threshold question that a court must determine before anything else can be discussed is whether there is harm to the children that can result from a denial of grandparents’ visitation rights.

The Court Would Determine the Visitation Schedule Based on the Best Interests Test

Only after a court determines that the grandparents have a right to visit with the grandchildren will they consider a visitation schedule. If the grandparents established their rights, the parents would need to agree on a schedule where the grandparents can see the grandchildren. If the parents cannot agree, the court will get involved. A judge would apply the best interest test to determine the schedule and how much time the grandparents can spend with the grandchildren. New Jersey law enumerates a large list of factors that a judge must consider when determining the child’s best interest. The judge can decide for each factor and how much weight to give them in their ultimate ruling.

As a grandparent, working with both parents to the fullest extent possible is in your best interest. However, given the nature of the individual situation, that may not always be possible. You should never assume that having a more difficult fight under New Jersey law means you cannot win a visitation case. You should consult with an experienced family law attorney to learn how the law May apply to the facts of your situation. 

Contact the Red Bank Divorce Lawyers at Sanvenero & Cittadino Attorneys at Law for Help Understanding Grandparent Rights

The Red Bank divorce lawyers at Sanvenero & Cittadino Attorneys at Law can help you in complex legal situations where they may not be an easy answer to your issue. We take the time to listen and learn before giving customized legal advice to assist you. Call 732-743-9665 or contact us online to schedule a free initial consultation. Located in Red Bank, New Jersey, we serve clients in Monmouth County, Middlesex County, and Ocean County.