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When Do Grandparents Have Custodial Rights To Their Grandchildren?

By: Attorney Kimberly A. Engan
At the conclusion of a divorce where children are involved, custody of the children of the dissolved marriage can become at issue. When parties other than biological parents have exercised a parental role over children from a divorced household, custody can become even more contentious.

In most actions, primary residential custody of children is granted to the parent and litigant who was the primary caregiver of the children during the marriage. Thus, primary residential custody is customarily given to the children’s mother, but custody can be given to the children’s father or an interested relative, under special circumstances. Such special circumstances usually involve but are not limited to:  the adjudicated unfitness of the parents due to abuse or neglect of the children or the criminal conduct or substance abuse issues of such parents.

Custody when granted to someone other than a natural parent, such as a grandparent, is presumed temporary unless a termination of parental rights occurs.

This firm has an extensive history of handling difficult and contested custody disputes both between natural parents and interested relatives, including but not limited to, grandparents. We have worked with well-regarded custody experts to conduct psychological evaluations of all parties to the litigation, to determine the best placement for the children in these custody disputes.

In instances in which we have represented grandparents seeking custody of their grandchildren, we have argued that such grandparents are the psychological parents of the children involved in the litigation and that granting custody to such grandparents is critical to the children’s emotional development and continued sense of security. These cases require the expertise that the members of our matrimonial team offer, as under current case law, grandparents do not have any affirmative rights to custody of their grandchildren over natural parents, absent extreme cases of abuse or neglect.

The New Jersey Courts have held that absent the circumstances above described, a natural parent can make a decision to exclude anyone from his or her child’s life, including but not limited to: a grandparent or grandparents. Yet, if an individual is found to be a psychological parent of a child, such person is put on close to equal footing with a natural parent in terms of custody rights. A psychological parent is one that not only provides for the child’s needs, but is a person to whom the child looks to for guidance and emotional support. The test of a psychological parent deals with who the child depends on to provide nurturing, love, and a sense of safety. In representing such individuals, we seek to set a new legal precedent for our clients who have become parents by virtue of joint sacrifice and building emotional connections to such very deserving children.

It is cases like these, which are both intellectually and emotionally challenging that make working in the matrimonial department as an associate attorney so rewarding. I am confidant our current clients as well as others who have learned of our reputation in the community will continue to chose the law firm of Pellettieri, Rabstein, and Altman to handle these difficult moments in their personal lives.
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