Grandparent Visitation Updated

by Frank J LaRocca on Jan. 28, 2016

Divorce & Family Law Divorce & Family Law  Child Custody 

Summary: An update by the Supreme Court on Grandparent Visitation

Under New Jersey’s Grandparent Visitation Statute, N.J.S.A. 9:2-7.1, grandparents can file for visitation of their grandchildren. This statute requires grandparents to make a prima facie showing of harm to the child in the absence of being granted visitation. But what happens when a prime facie case is not initially made? Should summary actions be allowed, or should more complex measures such as discovery or expert testimony be taken?

 

In Major v. Maguire, a unanimous New Jersey Supreme Court provided clarity on the issue. Here, the parent’s separated and had joint legal custody of their child. Four years later, the father passed away, and the mother restricted the paternal grandparent’s visitation. The grandparents brought suit under the Grandparent Visitation Statute, and the trial court dismissed the complaint saying that the grandparents failed to make a prime facie case that harm would be done to the child by denying the grandparent’s visitation. The grandparents appealed, and the Appellate Division reversed the decision, remanding the case to the trial court to re-examine the complaint under the guidelines set out in R.K. v. D.L., 434 N.J. Super. 113.

 

The Supreme Court weighed in on the issue, explaining a new approach. The Court’s approach reflects R. 5:5-7(c), which says that a trial court can assign a grandparent visitation case to a complex track, where it would hold initial and final case management conferences, and to enter an order that would address the full issues set forth in R.K.. Additionally, visitation applications that are not complex may still be handled via summary actions, with or without case management and discovery.  In effect, the trial court determines whether a case is complex or not, and if it is complex, the R.K. factors act as a template for the courts and parties as to whether or not procedures like discovery and expert testimony are needed.

 

The Court listed six factors the trial courts should follow. First, R. 5:5-7(c) should be followed to strike an appropriate balance between the grandparent and the parent’s rights in dictating case management. Second, if a party seeks the complex track, they should file a non-conforming complaint to supplement the form pleading required by Directive 08-11, allowing for no constraints on the length of their pleadings. Third, if discovery is required, both parties should work together to make the process as coordinated and as streamlined as possible. Fourth, expert testimony may be necessary, and if it is, the court should be aware of its impact on family resources, the privacy of the child, and its actual value to the court and parties in suggesting a resolution to the dispute. Fifth, the trial court should still dismiss actions where grandparents cannot sustain their burden of showing harm without conducting a full trial, even when the parties are granted discovery or expert testimony. Lastly, the trial courts should encourage parties to mediate or arbitrate visitation actions.

 

Ultimately the Supreme Court ruled that the grandparents in Major established a prime facie case of harm. The factors outlined in this case should help provide clarity on when summary actions should be allowed, and when discovery and expert testimony are needed. Throughout the entire process, the best interests of the child must remain paramount.

 

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