If A Grandparent Obtains Custody By Consent Of The Parent’s, Are They Treated The Same As The Natural Parents?

If A Grandparent Obtains Custody By Consent Of The Parent’s, Are They Treated The Same As The Natural Parents?

Yes. A grandparent typically has much lesser rights than the natural parents. However, in my over 20 years as a child custody lawyer (located in my hometown of East Brunswick, New Jersey), I have had many cases in which the parents both agreed that their child is better of living with the grandparent. Once this has been memorialized by an attorney a judge of a New Jersey Family Court will apply the applicable child custody law no different for the grandparent than the biological parents. This is mainly because the court shall always focus on what is in the best interests of the children. Therefore, if it is determined that the child is best remaining with the grandparent, then that is what the court shall order.

In Bocelle v. Caldwell, Lauren Caldwell and Christopher Martin had a son born in July 2008. Lauren and Christopher were married and became estranged in 2009. After the parents separated, the father had no overnights but two parenting time days per week. In 2011, the parents divorced and the father’s parenting time was modified in August 2015 to include weekends with his son.

The child spent most weekends at his grandparents’ house from the time he was three-and-a-half years old until he was about seven years old. The child also spent many holidays with his grandparents, including Easter, Thanksgiving, and Christmas, since his father was active in the military and his mother worked on weekends. The grandparents also attended the child’s school functions, such as class parties and holiday parades. At some point during the child’s life, the mother and the grandparents became hostile toward one another. Both the mother and the grandparents participated in mean and harassing behavior on social media. The parties were ordered by the New Jersey Superior Court Family Part to attend family counseling, but the sessions were unsuccessful.

The grandparents filed a complaint, on August 5, 2015, with the court requesting custody of the child. The grandparents alternatively sought parenting time with the child. On March 11, 2016, the court entered an order allowing the grandparents to have visitation one Saturday per month. In addition, the grandparents were allowed to continue attending the child’s events at school. The grandparents also babysat the child overnight when the father asked. The mother filed a motion with the court on June 8, 2016 seeking to end the grandparents’ visitation and prohibit them from attending the child’s events at school. The grandparents filed a cross-motion in return, on August 24, 2016, asking the court to allow that they continue attending the child’s school functions and to grant them a full weekend with the child per month.

The court held a short hearing, on August 29, 2016, and entered an order, which stated that the grandparents were allowed to attend the child’s school functions, unless both parents objected. The order also stated that the grandparents’ visitation time was at the discretion of either parent. The judge reasoned that the situation involved a disagreement between two fit parents and grandparents, and the grandparents had not demonstrated the sufficient harm necessary to order guaranteed grandparent visitation.

On appeal, the New Jersey Appellate Division stated that it will not reverse a trial court’s decision unless the party appealing demonstrates that the trial court’s decision was unjust. Additionally, the Appellate Division explained that it has the authority to raise the issue on its own where justice requires it. The Appellate Division stated that the grandparents have the burden on appeal of showing that visitation is needed to prevent harm to the child. However, once grandparents are permitted visitation by a consent order, a request to adjust the order must be supported by a showing of a change in circumstances. The burden of proving a change in circumstances lies with the party requesting to modify the order. The change in circumstances must also involve the welfare of the child. The question of harm to the child comes into play only when a party shows that there has been a change in circumstances to warrant a modification of the order.

The Appellate Division held that the trial court skipped a step in the determination and reversed the decision of the trial court. The Appellate Division stated that the trial court jumped ahead to determine if there had been harm to the child, which it found that there was not. The court found that the trial court stripped the grandparents of their one day a month with the child and allowed the mother to unilaterally decide if the grandparents could see the child. The Appellate Division stated that neither party demonstrated that there had been a change in circumstances, which was the central issue in the case. Furthermore, the Appellate Division found that, by order, the parents were allowed to terminate all visitation with the child, which could be very unjust. Therefore, the Appellate Division reversed the decision of the trial court and sent the issue back to the trial court to consider whether there was a change in circumstances.

If you have a similar situation regarding a child who is living with a grandparent, please contact our office today.


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