When parents in New Jersey divorce or breakup, the custody of their children often becomes a difficult issue. This is even more complicated if grandparents who were helping to raise the children now want legal custody. Grandparents generally cannot obtain custody of children in New Jersey unless the parental rights of the child’s natural parents have been terminated.

The parental rights of a biological parent can typically only be terminated if the parent is unfit. However, judges have a fair amount of discretion in child custody cases, and as such it is important for parents and grandparents to seek legal advice when entering into such a dispute. For example, in a recent child custody case that took place in another state, paternal grandparents were awarded custody of their young granddaughter by a court that ruled they were more fit to raise the girl than her natural mother, in part because the mother was not in the U.S. legally. An appeals court has now reversed that decision, stating that a person’s immigration status does not affect his or her fitness as a parent.

This case took place in Minnesota, where immigration rights advocates have called the appeals court’s decision a significant development. The case seems to clarify that under the state’s laws, child custody should only be taken away from biological parents to be awarded to non-parents if there are “grave and weighty” reasons, such as abuse or danger, according to the local newspaper. An undocumented immigration status does not meet such criteria.

The child’s natural parents in this case were only 17 and 15 at the time she was born in 2009. The teenagers did not marry, but they lived together with the young man’s parents–one of whom is a U.S. citizen and the other, a legal resident.

In 2011, the mother moved out and the grandparents sought emergency sole legal custody of the child. Now that an appeals court has placed the child with her mother, it remains to be seen whether the grandparents will file another appeal.

Child custody decisions are guided by state law, so this case may have gone a bit differently here in New Jersey. However, like in Minnesota, under New Jersey law the parental rights of biological parents can typically only be terminated if the child’s health or development is being endangered by the parent.

Source: Star Tribune, “Immigration status not a factor in custody battle, Minnesota court says,” Abby Simons, April 8, 2013

• For more information about child custody law and grandparents’ rights in New Jersey, please visit our law firm’s Child Custody and Parenting Time page.