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  • Writer's pictureLeslie A. Farber

Grandparent Visitation Rights are Not a Given

Grandfather and granddaughter

Life-altering changes in a family, such as a #divorce or #separation, incarceration, or the death of a parent, can have a tremendous impact on the relationship between a grandparent and grandchild. Many #grandparents suddenly find that the surviving or custodial parent has decided to limit their time with their grandchildren, or even prevent them from seeing each other at all. When children have bonded with a grandparent, especially in cases where the grandparent was sole care provider, separation from the adult they depended on can cause serious, sometimes permanent, damage.

Unfortunately, grandparents in the U.S. do not automatically have legal rights to see or visit their grandchildren. However, the good news is that some states allow grandparents to petition the court for #visitation under certain circumstances. The standard for determining whether or not visitation is awarded varies from state to state, with some states asking grandparents to prove that it is in the best interest of the child to have a relationship with them. Other states require grandparents to prove it will be harmful for the child not to have a relationship. Still others do not allow grandparents to petition the court for visitation with grandchildren under any circumstances.

Grandparents should check a number of provisions in the statutes in their respective states to determine the conditions for visitation and the factors a court must consider to order visitation.

In New Jersey, grandparents have a legal right to request reasonable visitation with their grandchildren at any time, including after one parent’s death or before, during, or after the parents' divorce or separation. The grandparent asking for visitation has the “burden of proof” to provide sufficient evidence that the child would be harmed if the visitation request was denied. Judges will consider any relevant evidence to determine whether the child will be harmed without the court-ordered time.

Grandparents also must demonstrate that spending time with them is in the grandchild’s best interest based on relevant evidence. This can include their relationship with the child; the parents’ visitation arrangement; the potential impact on the child’s relationship with his or her parents if the time is granted; and any history of sexual or physical abuse. The court will also treat as evidence the fact that a grandparent may previously have served as the child’s full-time caretaker.

An adoption by anyone other than a stepparent transfers all legal rights from a child’s biological parents and relatives to the adoptive parents and family. However, a court will consider awarding visitation to a biological grandparent after a child’s adoption if it determines that the proposed time serves the child’s best interests, considering his or her health, safety, and general welfare.

New York’s custody statute does not provide statutory factors for determining the best interest of the child. A court may grant visitation rights to grandparents if one or both of the child’s parents die; if they have a substantial existing relationship with their grandchildren; or if the child’s parents have interfered with their efforts to establish or maintain a relationship.

As in New Jersey, the burden of proof is on the grandparent to show a legal right to court-ordered time and that the proposed visits are in the child’s best interests. Considerations include the child’s age and wishes, the mental and physical health of everyone involved, and the grandparents’ nurturing skills and relationship with the parents. The court will assign a specially-trained attorney to represent the child’s interests.

In New York, adoption does not cut off a biological grandparent’s rights to request visitation. The primary consideration is the child’s health, safety, and welfare, and whether the visitation request is made before, during, or after an adoption.

If you are concerned about a parent limiting your time with your grandchild after a divorce, separation, or the other parent’s death, consult an attorney who specializes in family law and is familiar with your state’s statutes. For advice or counsel, please contact us at 973-509-8500 x213 or email

The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.

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