Can Grandparents Be Awarded Custody of Their Grandchildren?

We’re going to share with you what you need to know about grandparent custody rights.

In the heat of a divorce—particularly when it’s acrimonious—custody agreements can focus on each parent’s schedule to have the children. But it’s so daunting getting all the parties to agree and the judge to sign off on the schedule, that one important part of the family can be forgotten: the grandparents. In some cases, grandparents find themselves cut out of the custody schedule. They often ask: Can we sue for visitation or even custody?

Grandparents Have Rights in New Jersey

The simple answer to this question is yes, depending on the circumstances. Grandparents in New Jersey do have rights when it comes to visitation and custody of their grandchildren. We’re going to share with you what you need to know about grandparent custody rights.

1. What are some reasons a grandparent might be awarded custody of a grandchild?

You probably already know that if one parent in a custody case is deemed to be unfit by the courts, then the other parent can be granted sole custody. But what makes a parent deemed unfit? 

In New Jersey, this usually means that the parent has a problem with substance abuse, or they’ve abused the child or exposed them to domestic abuse (such as witnessing spousal abuse). It can also mean that the “unfit” parent has mental impairments (such as untreated bipolar disorder or schizophrenia) that could make them a potential danger to the child’s well-being.

However, if both parents are deemed unfit by the courts, they may turn to someone else to raise the children, even if it’s just a temporary situation. This means that a grandparent could be given custody. 

Oftentimes, this could just be a short-term solution until one (or both) of the unfit parents seeks treatment. If they can prove themselves to have changed, then the court may reinstate their parental rights. But in order for grandparents to gain even temporary custody, they first have to petition the court for custodial rights.

2. How do grandparents assert their rights to gain custody or visitation of their grandchildren?

There are a few steps grandparents need to take to show that they should be granted either visitation or custody of the grandchildren. These include:

• First, the grandparents must show they’ve been denied visitation by the parents. If the grandparents are a danger to the children, then denial of visitation won’t be an issue. But, if the grandparents are simply cut out of their grandchildren’s lives without cause, there may be grounds to sue for visitation and/or custodial rights.

• The grandparents must prove that the child will benefit from spending time with them.

• The major issue at hand the grandparents have the responsibility to show the court is that the children will be harmed if they’re not allowed to spend time with them. (This relates back to a New Jersey court ruling in Moriarty v. Brandt.)

• If the grandparents live in a different county or region of the state, they must file the petition with the county court their grandchildren reside in. This is the court that will have jurisdiction in making the final decision about the child’s well-being.

• As part of the grandparent’s petition, they’ll have to describe the current relationship they have with their grandchildren. They also have to submit their proposed visitation schedule. (Basically, what do you want the court to grant you?)

• If you’ve been granted visitation and the parents are still not allowing you to visit with your grandchildren, you may petition the court for redress and to make changes to your visitation order.

• Once you file your petition with the court, you’ll need to notify the parents. Generally, the court prefers to stay out of these domestic cases if they can be addressed individually or through mediation. However, if the parties can’t reach an agreement, the court will make a ruling.

• Finally, if the grandparents have evidence (for instance of domestic or substance abuse) that may make both of the parents unfit, then they must submit this evidence to the courts in order to get custody.

Considerations a NJ Court Will Look at to Determine Grandparents Custody or Visitation

There are a few questions that a New Jersey court will consider in determining how to rule. These include:

• Did the child already live with the grandparents for six or more months?
• Did the grandparents financially support the child (or at least provide some of the financial support)?
• Have the grandparents been allowed to visit with the child and are they actively involved with the grandchild?
• Will the child be harmed (either emotionally or even physically) if they’re kept from having regular contact with their grandparents?
• Will the children be at risk if they continue with their parents? Will the children be at risk if custody is given to the grandparents?
• Are the grandparents healthy enough to care for the child (physically and mentally)?

If a grandparent is given visitation, New Jersey still allows the child’s parents to petition the court to adjust or amend this order. For instance, if the grandparents have a health issue that arises which prevents them from caring for the child, the parents may ask for a change to the visitation/custody plan. Ultimately, they must show just cause for any court-ordered custody plans to be changed.

If you’re a grandparent who has questions about visitation or custody related to your grandchildren, contact one of the experienced attorneys at Smedley Law Group to learn more about your options.

Contact the Knowledgeable Family Law Attorneys at Smedley Law Group in Cherry Hill, NJ Today

If you’re thinking about filing for divorce, you’ll also most likely be dealing with another matter like child custody, child support, or division of assets, so you’ll need to speak with a qualified attorney. The New Jersey family law attorneys at Smedley Law Group represent clients throughout the state, including West Deptford, Woodbury Heights, Runnemede, and Westville. We understand how challenging this time can be for you, which is why we will fight hard to protect your interests, and the interests of your loved ones, throughout the legal process. Call us at (856) 251-0800 or fill out our confidential contact form to schedule a consultation. We have an office conveniently located at 750 Cooper Street, Woodbury, NJ 08096.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.