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Archive for the ‘divorce and children’ Category

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.