CUSTODY DISPUTES BETWEEN PARENTS AND GRANDPARENTS IN SOMERSET COUNTY/MORRIS COUNTY/SUSSEX COUNTY
JAMES E. SENSOR, ESQ.
As the economic and family structures in the United States continue to shift, more and more parents are relying on grandparents, aunts, uncles, and other third parties to assist them in child care. Unfortunately, adult disputes, or mistreatment of the children, can create situations where the parents or the grandparents no longer want the other party involved in the children’s lives. This often leads to what are called “third-party custody disputes,” or disputes where someone who is not a natural parent to the children is seeking custody or visitation over the natural parents’ objections.
The New Jersey Supreme Court specifically laid out the standard to be applied in third-party custody disputes in Watkins v. Nelson. In Watkins, the child’s biological mother, who had primary custody of the child, died in a car crash. The maternal grandparents then took custody of the child, over the objections of the biological father. The New Jersey Supreme Court stated that, when a third-party is attempting to obtain custody of the child over the objections of the natural parent(s), the Court must first find that the natural parent is unfit, has engaged in “gross misconduct,” has abandoned the child, or that “exceptional circumstances” exist. If, and only if, the Court makes one of these findings, the Court must then decide whether awarding custody to the third party is in the “best interests of the child.” The Court creates this two-part test, instead of simply looking at the child’s best interests, because of the natural and constitutional right of parents to custody of their children.
The Court was somewhat vague in defining what it meant by “exceptional circumstances,” but was clear that at least one example of an exceptional circumstance would be when the third party met the test for being a “psychological parent.” The standard for psychological parenthood was clearly laid out in the New Jersey Superior Court, Appellate Division case,V.C. v. M.J.B. The standard has four requirements:
1) the biological or adoptive parent consented to and fostered a “parent-like” relationship between the third party and the child;
2) the third party and the child lived together in the same household;
3) the third party assumed obligations of parenthood, taking significant responsibility for the child’s care, education, and development, without expecting to be paid, and;
4) the third party has been in a parental role long enough to establish a bonded, dependent, parental relationship with the child.
Establishing “psychological parenthood” will likely be sufficient to move on to the “best interests” step of a third-party custody decision. However, if unfitness or exceptional circumstances cannot be established, the Court is unlikely to grant custody to a third party over the children’s parents’ objections.
Aside from seeking custody, New Jersey carves out a special exception by statute for a child’s grandparents or siblings to seek visitation with a child over a natural parent’s objections. As opposed to “custody,” which is the right to raise, care for, and make important decisions regarding a particular child, “visitation” is the right of a party to have access to and spend time with a child. To obtain a visitation order, the grandparent or sibling of the child must prove that granting visitation is in the child’s best interests, and the Court must consider the following eight (8) factors:
(1) The relationship between the child and the grandparents or sibling;
(2) The relationship between each of the child’s parents, or the person with whom the child is residing, and the grandparents or sibling;
(3) The time which has elapsed since the child last had contact with the grandparents or sibling;
(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 grandparents or sibling in filing the application;
(7) Any history of physical, emotional or sexual abuse or neglect by the grandparents or sibling; and
(8) Any other factor relevant to the best interests of the child.
If the grandparents or sibling have been a full-time caretaker for the child in the past, the Court will typically presume that continued visitation with the grandparents or sibling is in the best interests of the child.
If you are a third-party seeking custody or visitation, or you are a parent and a third-party is seeking custody or visitation with your child, please contact one of our experienced Family Law and Custody attorneys today to set up a free consultation.
THE FOREGOING IS INTENDED TO BE A GENERAL DISCUSSION OF THE LAW AND IS NOT INTENDED TO BE CONSTRUED AS LEGAL ADVICE. IF YOU HAVE A SPECIFIC QUESTION, PLEASE CONTACT OUR OFFICE TO SPEAK WITH AN ATTORNEY.