After the US Supreme Court decided Troxel v. Granville in 2000, invalidating Washington’s “breathtakingly broad” grandparent and third party visitation statute, there was an onslaught of litigation, nationwide, seeking to invalidate grandparent visitation statutes in each state. Ultimately, in 2003 in the case of Moriarty v. Bradt (a case I was involved with), the New Jersey Supreme Court addressed this issue for the first time, post-Troxel, and held that because a judicial order compelling grandparent visitation infringes on parents’ fundamental right to raise their children as they see fit, the statute could only survive a constitutional challenge if a “threshold harm standard” augmented the “best interests of the child” factors set forth in the statute. What followed was litigation about what constituted harm, how it could be plead, etc.
Thereafter, changes in court procedure began to create an obstacle to these cases meeting the initial threshold. Because grandparent visitation cases are often treated as “non-dissolution” or “FD” cases, a streamlined, form pleading process was created by the court to use in FD cases. The typical complaint which would lay out the facts was now not permitted. Once it was determined that those attorney prepared pleadings could then be affixed to the form, the next issue that then arose was whether there was an entitlement to an expert and other discovery, since FD cases are deemed summary proceedings where discovery is not automatic. While the Appellate Division seemed to resolve this in 2014 in R.K. v. D.L. which provided for a differentiated case management for complex FD cases, the Supreme Court had not yet weighed in on the topic.
Today, the Supreme Court has finally resolved this issue in grandparent visitation cases in the case of Major v. Maguire reaffirming the need for differentiated case management for complex grandparent visitation cases. In this case, similar to the Moriarty case, one of the parents died and the remaining parent cut off the other grandparent’s access to the children leading to the litigation. The trial court initially dismissed the Complaint because the grandparents could not prove harm. The Appellate Division disagreed and reversed and remanded the matter to trial court with directions to re-examine the complaint under R.K..
The Supreme Court affirmed the Appellate Division, holding:
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.
Though the decision is 36 pages long, the following paragraphs encapsulate what you really need to know:
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 takeaway is that, after a dozen years, there now seems to be more of a clear roadmap for the courts and litigants as to how to handle these cases if they are to be litigated. That said, the Court interestingly noted that litigation may not be the answer, when it held:
Finally, trial courts should encourage parties to mediate or arbitrate grandparent visitation actions in accordance with New Jersey’s strong policy in favor of alternative dispute resolution. In a meritorious case, a seasoned mediator or arbitrator with experience in visitation and custody issues may devise a solution for the parties’ conflict promptly and inexpensively, to the benefit of the child and the parties.
Query, should or will a parent be forced to mediate a non-meritorious case because a trial court seeks to punt the above procedures down the road? If so, would that, in an of itself violate the constitutional protections that Moriarty and Major seek to impose. The future of grandparent visitation cases will remain interesting, I’m sure.
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or firstname.lastname@example.org.
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