What Custody Rights do Grandparents have to a Grandchild in New Jersey?

The law is well established in New Jersey favoring parents’ fundamental custody and parenting rights of their child.   However, that right is not absolute, and a parent’s presumptive right can be overcome by a showing of “gross misconduct, unfitness, neglect, or ‘exceptional circumstances’ affecting the welfare of the child.” K.A.F. v. D.L.M., 437 N.J. Super. 123, 131 (App. Div. 2014) (quoting Watkins v. Nelson, 163 N.J. 235, 246 (2000)).

            The New Jersey Supreme Court’s decision in Watkins, however, provides that grandparents have no inherent rights to custody of their grandchild.  In Watkins, the Supreme Court was called upon to “determine the appropriate standard for deciding a custody dispute between a biological parent and a third part following the death of the custodial parent.”  Id. at 237. 

In the Watkins case, a young unwed mother died in a car crash approximately two (2) weeks after giving birth.  The mother and child had lived with the mother’s parents.  The child’s father lived approximately an hour away.  At the mother’s funeral, the child’s father advised the maternal grandmother that he wanted custody of his child.  The grandmother refused.  The grandparents filed a complaint with the Court seeking to be appointed as guardians of their granddaughter.  While the matter was litigated in Court over the three-and-a-half-year period, the biological father had steady, predictable, recurring parenting time with his child.  See id.  The Court ultimately decided that “upon the death of a custodial parent, in an action for guardianship of a child pursuant to N.J.S.A. 9:2-5, a presumption exists in favor of the surviving biological parent.  That presumption can be rebutted by proof of gross misconduct, abandonment, unfitness, or the existence of ‘exceptional circumstances,’ but never by a simple application of the best interests test.” Watkins, 163 N.J. at 237.  The Court went on to explain that its concern of gross misconduct, unfitness, neglect, or exceptional circumstances was the State’s way of exercising its “parens patriae obligation to ensure that children will be protected from serious psychological harm.” Id. (internal citations omitted).  The Court recognized that “given the evolving dynamics within the family structure, the scope of ‘exceptional circumstances’ must await a case-by-case analysis.” Id. at 248.  The Court ultimately ordered the grandparents to transfer custody of their grandchild back to her father without further court proceedings, and remanded (returned) the matter back to the trial court to address a visitation schedule for the grandparents.  Id. at 257.

            Another way for grandparents (or other third parties) to gain custody rights of a child is obtaining an order deeming that person to be a “psychological parent.”  Being deemed a psychological parent is an exceptional circumstances that may rebut the presumption in favor of a biological parent (even a fit biological parent) as discussed in WatkinsWatkins at 247.  If the Court deems that the grandparent has become a child’s “psychological parent” then the grandparent will be deemed to have the same legal rights as the child’s parents. V.C. v. M.J.B., 163 N.J. 200, 227 (2000).  To be recognized as a psychological parent, the grandparent (or another third party) must file an application with the Superior Court and prove the following four elements at a trial:

1)  The legal parent must consent to and foster the relationship between the third party and the child;

2)  The third party must have lived with the child;

3)  The third party must perform parental functions for the child to a significant degree; and

4)  A parent-child bond must be forged.

            Generally, an expert witness will have to be hired to prove the existence of a parent-child bond in these types of cases.  Typically, this kind of expert will be a child psychologist or some other mental health professional who is experienced in working with and evaluating children and families.

            Even if a Court initially denies a grandparent’s motion to be deemed a psychological parent, circumstances may change in the child’s life and may ultimately persuade the court to change its prior decisions.  For example, in a recent unpublished (not precedential) Appellate Division decision, a trial court denied a grandmother’s motion to be deemed a psychological parent of her grandson.  (D.S. v. P.G. and L.S. (2021 N.J. Super. Unpub. LEXIS 37).  Here are the facts you need to know:

  • The child’s mother struggled with alcoholism, the Division of Child Protection and Permanency (DCPP) was involved, and the father lived in Texas. 
  • The court granted the grandmother joint legal custody of the child along with the mother and father.  The grandmother was also granted physical custody.
  • Years later, the father filed a motion to terminate the grandmother’s custody and relocate the child to Texas. 
  • The grandmother filed a motion seeking to be named as the child’s psychological parent. 
  • The judge denied the grandmother’s motion, terminated her custody of the child, and entered an order for the mother to re-commence her custody of the child.
  • The mother relapsed prior to the new custody order taking affect.  The grandmother filed a Certification with the Court stating that the mother was now homeless, unemployed, and abusing alcohol again, which the Court ultimately substantiated after hearing testimony from the mother.
  • The grandmother then filed another motion to again take custody of her grandchild and for the judge to reconsider his denial of her psychological parentage request. 
  • When the judge denied her motion for reconsideration, the grandmother filed an appeal. 

The Appellate Court noticed that the trial court had placed too much emphasis on the lack of expert testimony during the plenary hearing.  The Appellate Court noted the trial court’s statements that the grandmother “has had a big influence on the child’s life.  Has been there when her daughter has asked her to be.  And if not for the fact that there is no expert testimony with regard to the psychological parent issue, the [c]ourt would look at many of these factors favorably to the . . . grandmother, specifically with regard to fostering a parent-like relationship . . . living with the child in the same household; and taking significant responsibility for the child’s care, education, and development.”  Id. at 10.  The reasoning for the trial court’s denial of the grandmother’s application seemingly hinged on lack of consent from the child’s father, which the judge said was necessary for the grandmother to prove her psychological parentage claim. Id.

The Appellate Court noted that the trial court’s findings after the plenary hearing had been rendered moot by the “subsequent developments” such as the mother’s relapse and the fact that the child ended up remaining in the grandmother’s sole physical custody for an additional 20 months.  In light of that, the Appellate Division remanded (returned) the case to the trial court to address discovery requests relative to the “subsequent developments,” to set a date for a new plenary hearing, and to consider appointing a Guardian ad Litem for the child.

A grandparent’s right to visitation with a child is governed by different considerations.  Specifically, N.J.S.A. § 9:2-7.1 allows a grandparent or sibling to file an application with the court for visitation with a child.  The person filing the application must prove by a preponderance of the evidence that granting them visitation would be in the child’s best interest.  The statute lists the following eight (8) factors for a court to analyze when analyzing this question:

(1) The relationship between the child and the applicant;

(2) The relationship between each of the child’s parents or the person with whom the child is residing and the applicant;

(3) The time which has elapsed since the child last had contact with the applicant;

(4) The effect that such visitation will have on the relationship between the child and the child’s parents or the person with whom the child is residing;

(5) If the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;

(6) The good faith of the applicant in filing the application;

(7) Any history of physical, emotional or sexual abuse or neglect by the applicant; and

(8) Any other factor relevant to the best interests of the child.

The statute also specifies that if an applicant was a child’s full-time caretaker in the past, then that shall be considered prima facie evidence that granting visitation is in the child’s best interest.  The term “prima facie” means something is sufficient to establish a fact unless rebutted or disproven.

If grandparents, siblings, or third parties find themselves asking whether they should file an application with the court for custody, psychological parentage, or visitation they are likely in the middle of a tumultuous situation.  The emotional labor of such a scenario is often daunting, and the thought of a years-long legal battle requiring trials and experts offers no comfort for those who find themselves in the midst of the chaos.  Grandparents who are in similar situations to those mentioned above should contact an experienced family law attorney to help them wade through the crises and formulate a plan that best serves their family.  If you are a grandparent, a biological parent, or some other third party individual that finds yourself involved in a situation like this, Ziegler Resnick & Epstein can and will assist you in navigating the Court system from beginning to end.

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