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Grandparent Visitation Rights in NJ

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Grandparent Visitation NJ Statute

On January 12, 2016 in Major v. Maguire, the NJ Supreme Court addressed a case regarding the Grandparent visitation rights in NJ. N.J.S.A. 9:2-7.1. The plaintiffs, represented by counsel, commenced an action under the statue alleging their involvement in their granddaughter’s life from birth and contended that their alienation from the child would cause her harm.

The defendant, represented by counsel argued that the plaintiffs had failed to establish a prima facie showing of harm to the child in the absence of visitation, as required by Moriarty v. Bradt, 177 N.J. 84 (2003), cert. denied, 540 U.S. 1177 (2004), and informally moved for dismissal of the complaint with prejudice.

The trial court stated that the complaint failed to make the necessary showing of harm to the child in the absence of grandparent visitation and found the complaint to be premature because there was no showing that the defendant had denied visitation with finality after efforts to resolve the matter. The court dismissed the complaint.

On appeal the Appellate Division reversed finding that the trial court should have denied defendant’s motion to dismiss and given plaintiffs the opportunity to satisfy their burden of proving harm, invoking the procedural guidelines set forth in R.K. v. D.L., 434 N.J. Super. 113 (App. Div. 2014), and concluded that the trial court’s approach was inconsistent with governing statutory and case law. The panel remanded to the trial court with directions to re-examine the complaint under R.K. This Court granted certification to the Supreme Court. 218 N.J. 530 (2015). Under N.J.S.A 2:12-4., Certification to the Supreme Court is granted “only if the appeal presents a question of general public importance which has not been but should be settled by the Supreme Court or is similar to a question presented on another appeal to the Supreme Court.”

This issue in this case, grandparent visitation rights in NJ, is relevant to many families and thus was granted certification. Grandparent Visitation NJ Statute, N.J.S.A. 9:2-7.1 , under which the action was commenced, was signed into law in 1972 and twice amended. Factors considered by the Court in visitation include:

a. A grandparent or any sibling of a child residing in this State may make application before the Superior Court, in accordance with the Rules of Court, for an order for visitation. It shall be the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best interests of the child.

b. In making a determination on an application filed pursuant to this section, the court shall consider the following factors:
(1) The relationship between the child and the applicant;
(2) The relationship between each of the child’s parents or the person with whom the child is residing and the applicant;
(3) The time which has elapsed since the child last had contact with the applicant;
(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 applicant in filing the application;
(7) Any history of physical, emotional or sexual abuse or neglect by the applicant; and
(8) Any other factor relevant to the best interests of the child.

c. With regard to any application made pursuant to this section, it shall be prima facie evidence that visitation is in the child’s best interest if the applicant had, in the past, been a full-time caretaker for the child.

Each case involving grandparent visitation rights in NJ is unique and requires detailed analysis of the surrounding circumstances.

 

How Divorce Affects Children

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Think of the Children!

The Affects of Divorce on Children

divorce-njWhen considering a divorce, the first thing that might pop into your mind is divorce affects children. Keeping children happy and healthy is a parental instinct. Often times parents’ view divorce as something that will have a severely negative affect on this happiness and emotional health. Many of us know or have heard countless stories of couples who “stayed together for the kids,” or delayed divorce until they reached adulthood. While this may work for some couples, it is not healthy for most to stay in an unhappy marriage for the sole purpose of keeping the children’s status quo.

Numerous studies have been conducted on how divorce affects children, but the fact remains that every family and every divorce is different.

According to Scientific American, a relatively small percentage of children experience serious problems in the wake of divorce or later in life as adults. Most children are affected in the short-term, but research suggests that they recover rapidly after the initial impact.

A 2002 study conducted by University of Virginia psychologist E. Mavis Hetherington and her graduate student Anne Mitchell Elmore found that many children experience negative affects in the short-term, including anxiety, anger, shock, and disbelief; however, by the end of the second year these feelings usually lessen or disappear.

In 2001, sociologist Paul R. Amato examined the affects on children several years after divorce. Children who experienced divorce at different ages were followed into their later childhood, adolescence or teenage years. The study found that on average there were only very small differences between these children and children of non-divorced parents in their academic achievement, emotional and behavior problems, delinquency, self-concept and social relationships.

how-divorce-affects-childrenResearch has showed that high levels of parental conflict during and after divorce are linked to more difficult adjustment in children; however, in some cases children who are from high conflict families welcome divorce as a relief from parental fighting, while those who have not witnessed any marital conflict can be more shocked or scared by the news.

While there are claims that suggest divorce leads to serious issues in adulthood like depression and relationship problems, such as in the the 2000 book entitled The Unexpected Legacy of Divorce: A 25 Year Landmark Study, by Judith Wallerstein and her colleagues, scientific research does not support the notion that such problems are frequent in adulthood.

On the contrary, many studies have found that most children of divorce become well-adjusted adults; the 2002 book, For Better or For Worse: Divorce Reconsidered, by E. Mavis Hetherington and her co-author, journalist John Kelly, details a the 25-year study in which she followed children of divorce and children whose parents stayed together. Hetherington found that 25 percent of the adults whose parents divorced experienced serious social, emotional or psychological troubles compared to 10 percent of those whose parents stayed together, which suggests that only 15 percent of adult children of divorce experience problems worse than those from intact families.

Ultimately, research cannot determine what causes or affects this difference, but factors such as poor parenting and the characteristics of the children are likely to play a role.

A large part of how divorce affects children is due to how parent’s handle the divorce themselves. The emotional toll of divorce on couples and the stress it produces can lead to an unintentional drop in the quality of parenting during the process. Trying to keep the stable environment the children are used to is key to their success. Some changes are inevitable, but the amount of emotional support, love, and care given is in the hands of parents.

If one or more parents are not doing well emotionally, it is likely that the children will suffer as well; therefore, a parent should try to recognize their own personal issues and seek professional help. This is especially important for the parent of primary residence.

divorce-affects-childrenChildren who witness constant fighting between their parents have a harder time adjusting. Criticism of the other parent causes tension and can be just as destructive as fighting. The best way to help children is to have all divorce and custody discussions, whether peaceful or argumentative, in private. Children should only be involved in calm clear discussions that either explain how their daily lives will be affected or to understand their feelings and wishes.

Cooperative parents can protect children from the stress of divorce. There are many resources for parents wishing to help their children adjust, such as KidsHealth.org, which offers valuable advice on how to break the news, handle reactions, and aid in the coping process.

While the fear of how divorce affects children is a logical one, parents must keep in mind that they have significant control over those affects. Of course, divorce is not the ideal situation for any family, but in certain circumstances it can be the right solution. It does not always translate to negative affects on children, especially if they have at least one parent willing to put them first.

If you fear your children will be negatively affected by your divorce it is best to consult with a family counselor or therapist and discuss your thoughts with your divorce attorney or mediator, who may provide insight into this very common concern.

LAWS ON CHILD RELOCATION IN NEW JERSEY

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nj child relocation lawsDuring or after divorce parents often find themselves facing new questions regarding their minor children. In New Jersey, a custodial parent who wishes to move out of state with their child must have a Court Order or the written consent of the other parent. Child Relocation in New Jersey can become more complex if the noncustodial parent does not agree to the move, and the Court must decide whether the relocating parent can leave the state. If a non-custodial parent wants to move out of the state there are no laws preventing it.

In the 2001 case of Bauers v. Lewis, 167 N.J. 91 (2001) the New Jersey Supreme Court held that the custodial parent seeking to relocate the child must prove good faith and that his or her request to move is in the best interest of the child. The Court established various factors to consider in determining whether to grant the custodial parent’s application to relocate a child if the non-custodial parent objects:

  1. Reasons given for the move;
  2. Reasons given for the opposition;
  3. Past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move;
  4. Whether the child will receive educational, health and leisure opportunities at least equal to what is available here;
  5. Any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location;
  6. Whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child;
  7. Likelihood that the custodial parent will continue to foster the child’s relationship with the noncustodial parent if the move is allowed;
  8. Effect of the move on extended family relationships here and in the new location;
  9. If the child is of age, his or her preference;
  10. Whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent;
  11. Whether the noncustodial parent has the ability to relocate; and
  12. Any other factor bearing on the child’s interest.

After the burden of good faith and best interest of the child is met by the custodial parent, the non-custodial parent must provide evidence that the child’s interest will suffer from the relocation. Visitation alone is not considered proof as to whether the child’s interest will be jeopardized by the move

Parents considering moving within New Jersey must also be aware of whether they will need permission to do so. Generally, a move that is far enough away to necessitate a change in a previously entered Court ordered parenting plan or a mutually agreed-upon schedule will require permission from the non-custodial parent. As with child relocation out of state, unless a consent order is signed by the non-relocating parent, the parent interested in moving must seek the Courts approval through filing a motion.

Child relocation in New Jersey is a complex and emotional issue that many divorced New Jersey parents must face. Due to the complicated and sensitive nature of the matter it is recommended to consult with a New Jersey family law attorney familiar with child relocation.

USING MEDIATION AFTER DIVORCE

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Mediation is not only for divorcing couples.  Mediation maybe used at anytime a dispute arrises.  After divorce, a change in one spouses employment, change in health, relocating are just a few examples of issues that may be addressed in mediation.  Choosing mediation over litigation  is often highly beneficial to maintaining amicable relations.

Property Settlement Agreementdivorce mediator Edison NJ

Mediation is especially helpful in modifying a property settlement agreement after divorce. If there is disagreement any time after the agreement is signed, a mediator can guide the parties in coming to a fair compromise.

Alimony is usually a major issue addressed in the property settlement agreement and can be modified if certain circumstances change. Changes in employment and income commonly call for payments to be adjusted. Seeing a mediation attorney to draft these changes can save parties significant time, money, and stress.

Child Custody

If a property settlement agreement was previously signed by parents it is likely to contain a child custody agreement. Whether mediation or litigation was used in the divorce, ex-spouses who co-parent may find it helpful to use mediation to modify the child custody agreement as their child grows and family dynamics change. While many co-parents, especially those who have used divorce mediation, have an amicable and effective parenting relationship, seeing a divorce mediator Edison NJ or surrounding areas when circumstances change can aid in keeping the situation peaceful.

As a child grows their needs and interests will change, which means previous child custody agreements may not hold as much relevance. Instances in which a parent relocated may also find child custody mediation effective. Using mediation in these cases does not weaken the family unit as might litigation, but rather it acts as an aid in continuing the amicable and reduced stress environment that both parents have worked hard to achieve.

While divorced couples are usually equipped to handle conflict, mediation should be kept in mind as an alternative solution.  Certain complex issues, especially those involving children, will benefit from the help of an effective mediation attorney.

Contact us today to set up an appointment for you and your spouse.  Armour Law Firm for your divorce mediator Edison NJ and surrounding areas.