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Court of Appeals Upholds Visitation Rights of Grandparents


Grandmother reading to grand daughter

In a recent case before the New Jersey Appellate Division, the court has affirmed the legal right of grandparents to visitation with their grandchildren. In the case, captioned M.K. v. A.K. in order to preserve the anonymity of the parties, a pair of grandparents brought a claim against the widowed wife of their son, several months after he had passed away. The couple had two children together, aged 9 and 11, at the time of their father’s death. Their mother presented evidence that, during the father’s lifetime, the children’s relationship with their father’s parents had become strained and distant. The grandparents, on the other hand, testified that the grandchildren and grandparents had a close bond.

The grandfather described that the children would come over two or three times a week, including for breakfast on Sundays, that the children often swam in the grandparents’ pool, that the grandparents and young family would go on vacations together, that he had taught his grandson how to fish, and that the grandparents would come to their grandchildren's baseball and soccer games.

The children’s mother painted a different picture. She testified that the Sunday visits were much more sporadic, that the children would be reduced to tears by their grandfather for not swimming enough or not diving correctly, and that, because of growing strain between the grandparents and the grandchildren, and the grandparents’ increasingly negative treatment of the mother, she and the children's father made a “conscious decision” to distance the family from the grandparents.

Three years before the father’s death, the mother and grandfather were involved in a business deal together, which deteriorated over the course of the two years that followed, resulting in the mother distancing herself to an even greater degree from the grandparents, and leaving the father with primary responsibility for facilitating a relationship between his children and his parents. While the mother facilitated a handful of visits between the children and their grandparents after the father’s passing, the relationship quickly disintegrated entirely.

Grandparents sue for visitation

Roughly three months after their son died, the grandparents filed suit under New Jersey’s Grandparent Visitation Statute to ensure that they would be granted opportunities to see their grandchildren. Under this law, grandparents may apply to family courts for an order for visitation. The applying grandparents have the burden of proving that such visitation would be in the best interests of the child. The statute sets out eight factors for a court to consider when deciding to grant such an order, including the relationship between the children and grandparents, the relationship between the parents and grandparent, the effect that visitation would have on the relationship between the children and their parents or guardian, and whether the grandparents filed their application in good faith.

After the grandparents filed their application for visitation, the court examined evidence of the nature of the relationship between the children and grandparents. This included expert testimony from a psychologist who had spent time with the children and grandparents, having been tasked with determining whether it would cause harm to the children to deny visitation rights to the grandparents. While the children testified that they did not want to visit with their grandparents, the psychologist determined that the mother had imparted her negative feelings about the grandparents to her children, which was having a detrimental effect on the health of the children, especially in light of their father’s abrupt death. The court on appeal affirmed the trial court’s decision ordering the mother to facilitate monthly visits between the children and their grandparents.

If you are a grandparent seeking to preserve your relationship with your grandchildren or are facing a different custody issue, contact the experienced New Jersey family law attorneys at Herbert & Weiss. Our compassionate and knowledgeable staff will ensure that your rights to see your children or grandchildren are upheld; we are available to assist you with your family law claims in Englewood, Bergen County, Teaneck, North Bergen, and throughout Hudson and Passaic County.

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