Securing ‘grandparenting' visitation time has been especially difficult since the United State Supreme Court's landmark Troxel v. Granville, 530 U.S. 57 (2000) decision over a decade and a half ago.
That ruling's parallel in New Jersey came about in 2003, in Moriarty v. Bradt, in which our own Supreme Court recognized parents' fundamental right to raise their child as they see fit. Now, as we've discussed before here at the blog, grandparenting time is typically not awarded in New Jersey unless the petitioning party can “establish by a preponderance of the evidence ‘exceptional circumstances' warranting the best interest inference,” and, moreover, how “the visitation is necessary to avoid harm to the child.” This year? We have a new decision that doesn't expand grandparenting rights but, at the very least, establishes a grandparent's rights in the litigation context. In Major v. Maguire decided this January, as in the aforementioned Moriarty case, the living parent cut off the recently deceased other parent's mother and father from access to their grandchildren. The Appellate Division reversed and remanded a trial court's decision to dismiss the grandparenting time application since, in the Appellate Court's opinion, the grandparents hadn't been given a reasonable chance to prove their case: We reaffirm the holding of Moriarty that, in order to overcome the presumption of parental autonomy in the raising of children, grandparents who bring visitation actions under N.J.S.A. 9:2-7.1 must prove by a preponderance of the evidence that denial of visitation will harm the child. This case, however, arises not from a court's findings on a full record, but the grant of a motion to dismiss under Rule 4:6-2(e) at the pleading stage, in which plaintiffs must be afforded every reasonable inference of fact. Here, plaintiffs alleged in detail their involvement in their granddaughter's life prior to the death of their son and contended on that basis that their alienation from the child caused her harm. The trial court should have denied defendant's motion to dismiss and given plaintiffs the opportunity to satisfy their burden to prove harm. The Appellate Court then proceeded to explain, at great length, how such cases should be managed: First, as applied to a complex grandparent visitation case, the Appellate Division's case management recommendations in R.K., …, enhance the constitutional standard articulated in Moriarty. We concur with the panel in R.K. that in some grandparent visitation actions, the limitations imposed in summary actions may deprive a litigant of an opportunity to meet his or her burden under the statute and case law. … We recognize, however, that the case management procedures envisioned by R.K. also impose burdens on the privacy and resources of a family, and that they are neither necessary nor appropriate in every case. We consider the approach reflected in Rule 5:5-7(c) to strike the appropriate balance. That Rule requires the trial court to hold initial and final case management conferences, and to enter an order addressing the full list of issues set forth in R.K., only in grandparent visitation cases that warrant assignment to the complex track. … Visitation applications that are not “complex” may be handled as summary actions, with or without case management and discovery as authorized by Rule 5:4-4(a). … Thus, when a trial court determines the need for complex case management in a particular case, the Appellate Division's case management recommendations in R.K. provide a practical template for courts and parties. Second, when a party seeks to have the matter designated as “complex,” the plaintiff should ordinarily file a non-conforming complaint, as permitted by Rule 5:4-2(i), to supplement the form pleading required by Directive 08-11. With no constraints on the length of their pleadings, many plaintiffs will be in a position to present a prima facie showing of harm in that complaint without the need for intrusive discovery. For example, in a case such as this one, the grandparent would be able to plead a showing of harm; he or she may allege his or her contacts with and care for a grandchild when the parent was alive, the timing and circumstances of the parent's death, any changes in family relationships that followed, the nature of the claimed harm, and other pertinent considerations. … Relevant facts within a grandparent's knowledge should be presented with precision and detail. Similarly, a parent opposing visitation should use his or her responsive pleading to identify issues on which the parties agree and counter the grandparents' factual allegations on disputed issues…. Informed by the pleadings, the trial court can make a considered judgment about the complexity of the matter, the need for fact or expert discovery, and the issues to be resolved. Third, in the event that fact discovery is required, the court and the parties should work together to coordinate and streamline the process. … Whether the case is designated as complex or handled as a summary action, Family Part judges have broad discretion to permit, deny, or limit discovery in accordance with the circumstances of the individual case. …Under the court's supervision, the parties should address only the issues in dispute: whether the grandparents have met their burden to demonstrate harm to the child in the absence of visitation, and, if so, what visitation schedule will serve the best interests of the child, applying the factors identified in N.J.S.A. 9:2-7.1. … Any discovery should be carefully circumscribed to prevent or minimize intrusion on the privacy of the child and his or her family. … It is the rare case that will require the trial court to embark on a comprehensive inquiry into family history or probe the relationships of warring adults. The court, counsel and parties should be aware that no matter how difficult the circumstances may be, the litigants' interests are not the primary concern. Instead, the court's focus, and that of the parties, must be the welfare of the child. Fourth, as the Court noted in Moriarty, supra, expert testimony may be necessary for grandparents to meet their burden under N.J.S.A. 9:2-7.1. … Particularly in settings in which one of the child's parents is deceased, and the other parent has barred or sharply limited the grandparents from contact with the child, parties seeking visitation may not have access to current information about the child's status. In determining whether expert testimony is appropriate, trial courts should be sensitive to the impact of expert involvement on family resources, protective of the privacy of the child, and mindful of an expert's potential value to the court and parties in suggesting a resolution of the dispute. Fifth, even when it has afforded grandparents the opportunity to conduct fact or expert discovery, the trial court should not hesitate to dismiss an action without conducting a full trial if the grandparents cannot sustain their burden to make the required showing of harm. To that end, a court may dismiss summary actions pursuant to Rule 4:67-5, and decide complex visitation cases by summary judgment under Rule 4:46-2(c). Consistent with the due process autonomy interests recognized in Troxel, and Moriarty, a trial court should not prolong litigation that is clearly meritless. (Emphasis added); (internal citations omitted and otherwise edited for space). The bottom line? Grandparenting visitation cases are still difficult but, at least now, we have a firm idea of what a grandparent needs to do – and is entitled to do – under similar circumstances to the petitioners in Major.
We can help if you're dealing with similar issues. The standards for grandparenting time are challenging to meet but not insurmountable with experienced representation. If you are grappling with a child custody matter in New Jersey, a DeMichele & DeMichele attorney will walk you through the process. Most importantly, we will make sure that you have your factual ducks in a row so that the Court can make an informed decision that accurately accesses the important role that you play in your child or grandchild's life. Always remember: you don't have to go through this alone! If you or a loved one have questions regarding child custody generally, parenting time, grandparent visitation, or other family court matters in the State of New Jersey, please don't waste any time contacting the New Jersey family law attorneys at DeMichele & DeMichele. Your confidential initial consultation is only a click or call away. Call now to speak to one of our family law attorneys at (856) 546-1350 or click here to contact us online. ________
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