Grandparents Rights in New Jersey Improve, Slightly
Throughout my career as a child custody lawyer, I have had to advise many loving grandparents that their rights to have visitation with their grandchildren are dramatically less than that of the natural parents. In sum, if the grandparents have been heavily involved in their grandchildren’s lives, they may have a good case for visitation. However, the attorneys at my law firm have advised many grandparents that if they have not been intimately engaged in their grandchildren’s lives, there case is weak, at best. As always, the court is always focused on the best interests of the child and shall protect them accordingly. However, a brand new case from the New Jersey Supreme Court now allows the New Jersey Family Courts to allow for discovery of facts in order to make this determination. While this is not revolutionary towards grandparent rights, it certainly bolsters their ability to seek visitation with their grand kids. Let’s take a closer look.
In the recent case of Major v. Maguire, the New Jersey Supreme Court addressed the proper procedure for case management of a grandparent who seeks an order compelling visitation under the Grandparent Visitation Statute. Grandparents Anthony C. Major and Suzanne Major requested visitation with their young granddaughter after the death of their son. The child’s mother, Julie Maguire, allowed the grandparents only two brief visits with their granddaughter after their son died. The grandparents filed an action in the Family Part under New Jersey Statute 9:2-7.1, and sought an order compelling Julie to allow them periodic visits with their granddaughter. According to the trial court, their complaint, and supplementary testimony failed to present a prima facie case that child would be harmed unless visitation were ordered. The Family Part found that the grandparents had incorrectly commenced litigation before Julie had denied visitation with finality, and accordingly dismissed the case. On appeal the New Jersey Appellate Division relied on its 2014 decision addressing case management issues in grandparent visitation litigation in R.K. D.L., and reversed the trial court’s determination.
In the 2003 case of Moriarty v. Bradt, the Supreme Court of New Jersey reasoned that because a judicial order compelling grandparent visitation infringes on a parent’s fundamental right to raise their child as they see fit, it is subject to strict scrutiny. The Court determined that New Jersey Statute 9:2-7.1, or the Grandparent Visitation Statute, could survive a constitutional challenge only if it met a threshold harm standard amplified by the best interest of the child factors prescribed by the Legislature. The Court in Moriarty, further ruled that when a child’s parent or parents object to the proposed visitation by the grandparent, the same grandparent seeking visitation must prove by a preponderance of the evidence that a denial of visitation would result in harm to the child. If the grandparent can meet this burden, the presumption in favor of parental decision-making is overcome, and the court sets a visitation schedule in the best interest of the child.
In Major v. Maguire, the Supreme Court of New Jersey reaffirmed the rule of Moriarty, that in order to overcome the presumption of parental discretion in the raising of children, grandparents who file visitation actions under the Grandparent Visitation Statute, must prove that the denial of visitation will harm the child, by a preponderance of the evidence. The issue at hand, however, did not arise from a court’s finding on a full record, but rather from a grant of a motion to dismiss under Rule 4:6-2(e) at the pleading stage, in which plaintiffs must be given every reasonable inference of fact. The grandparents alleged their involvement in their granddaughter’s life prior to the death of their son in detail, and argued on that basis that their exclusion from the child’s life caused her harm. Accordingly, the Supreme Court of New Jersey found that the trial court should have denied Julie’s motion to dismiss, and should have given the grandparent’s the opportunity to satisfy their burden to prove harm.
In the case of R.K. v. D.L., the Appellate Division decided that while a parent also has superior authority in regards to the child, grandparents must be given the opportunity to present evidence that visitation is necessary to avoid harm to the child. According to the Appellate Division, depending on the circumstances, discovery in grandparent visitation cases are not only permissible, but sometimes indispensable. Moreover, grandparents looking to overcome a parent’s objection to visitation, must be given the opportunity to gather the evidence necessary to meet the burden of proof. Once the burden has been met, the parent is required to offer the grandparents a reasonable visitation schedule. Once the visitation schedule is accepted the trial court will memorialize it. If the grandparents are not satisfied with the proposed schedule, the trial court will assess the reasonableness of the proposal, and approve one that it finds is in the child’s best interest.
In Major v. Maguire, the Supreme Court of New Jersey established four principles for addressing procedural matters in actions under the Grandparent Visitation Statute, which are based after the procedure set forth in R.K. v. D.L., which require a fact-sensitive analysis. First, the limitation imposed in summary actions, like motions to dismiss, may deprive a grandparent to me his or her burden under Grandparent Visitation Statute and case law. That said, the Supreme Court of New Jersey still found that the case management procedures of R.K v. D.L., may impose burdens on the privacy and resources of a family, and are neither necessary nor appropriate in every case. Rather, the Supreme Court of New Jersey found that the approach to case management enumerated in Rule 5:5-7(c) actual creates the appropriate balance. Case management conferences and the other proceedings referred to in the Rule are appropriate only in cases that warrant assignment to the complex track. In such cases, the case management recommendations in R.K. v. D.L., provide a practical standard. Applications that not complex, however, may be handled as summary actions, with or without case management and discovery as authorized by Rule 5:4-4(a).
If a grandparent wishes to request that the matter be designated as complex, he or she should also file a non-conforming complaint. This will allow the grandparent to the opportunity to present a prima facie showing of harm and address the factors of the Grandparent Visitation Statute without the restrictions of a limited form pleading. A parent opposed to visitation should utilize a responsive pleading to identify issues that both parent and grandparent agree upon, and at the same time counter the grandparent’s contentions on disputed issues. With the information from these pleadings, the trial court can make a reasoned judgment about the complexity of the matter, the need for factual or expert testimony, and most importantly, the issues to be resolved. If factual discovery is necessary, the court and the litigants must coordinate to streamline the process. During this process trial courts should be sensitive to the impact to the privacy of the child and family. In the same vein, trial courts must be cognizant of the impact on family resources, and the privacy of the child when a plaintiff seeks to present expert testimony.
Finally, a trial court should not hesitate to dismiss an issue if the grandparent’ cannot meet their burden of showing harm. Furthermore, according to the Supreme Court of New Jersey, trial courts should encourage litigants to mediate or arbitrate grandparent visitation actions. This is due to New Jersey’s strong policy in favor of alternate dispute resolution. After applying all the afore-mentioned the Supreme Court of New Jersey concluded that trial court made a mistake when it dismissed the grandparent’s complaint. Moreover, the Supreme Court found that the grandparents had established a prima facie case that absence of visitation with the granddaughter would harm the child. For more information on this issue, please contact my office today.