LOOKING AGAIN AT “GRANDPARENTS RIGHTS”

Posted by on Feb 3, 2016 in Blog, Custody & Parenting Time | Comments Off on LOOKING AGAIN AT “GRANDPARENTS RIGHTS”

LOOKING AGAIN AT “GRANDPARENTS RIGHTS”

LOOKING AGAIN AT "GRANDPARENTS RIGHTS"

The New Jersey Supreme Court recently looked at the issue of grandparent visitation in the case of Major v. Maguire. The case re-affirms the task of the trial court in these fact sensitive cases.

By way of brief history, New Jersey statute N.J.S.A 2:9-7.1 addresses a grandparent’s ability to have visitation with their grandchildren over the objection of the biological parent(s). In 2000, the United States Supreme Court, in the case of Troxel v. Granville, struck down Washington state’s broad grandparent rights statute. In response, the various states were left to re-examine their own statutes.

In New Jersey, this ultimately led to the 2003 case of Moriarty v. Brady. Our Supreme Court held that grandparents seeking visitation must prove by a preponderance of the evidence that the denial of the visitation they seek would result in harm to the child. If the potential for harm has been shown then the focus switches to an appropriate visitation schedule that is in the best interests of the child.

In Major, grandparents brought an action against their daughter-in-law after the death of their son to seek visitation with their granddaughter. The grandparents alleged that they had been a meaningful part of their granddaughter’s life since her birth and that the mother was keeping them away. Mom filed a summary motion to dismiss which was granted by the trial court. Subsequently, the Appellate Division reversed this decision finding that the grandparents had in fact made a sufficient showing of harm. The Supreme Court affirmed the Appellate Division and the case was sent back to the trial court.

In reaching its decision the Court addressed the procedures by which a Family Part judge determines whether a grandparent has made a sufficient showing of harm to the child to withstand a motion to dismiss and how the case is to be managed by the judge in the event that sufficient showing has been made. If fact discovery is required, the court and the parties are to coordinate and streamline the process and seek minimum intrusion on the privacy of the child and the family. But, if the grandparents cannot sustain their burden of showing harm to the child, the trial court should not hesitate to dismiss the action.

The take away is that grandparents seeking to bring an action must ensure that their pleading has sufficient facts in order to avoid a summary judgment motion to dismiss. If the application contains sufficient facts to meet their burden of showing harm then they should be given every opportunity to make their case through discovery and perhaps a plenary hearing. However, if they do not plead sufficient facts to satisfy their burden the case will be dismissed summarily.

All of the attorneys at Domers & Bonamassa are well versed and have years of experience addressing family law issues, no matter how complicated. Contact us today at (856) 596-2888 for a private consultation. We appear in the following counties: Burlington, Camden, Gloucester, Cumberland, Salem, Mercer, Ocean, Atlantic and Cape May. Our practice areas include: divorce, custody, parenting time, child support, alimony, domestic violence, college expenses, equitable distribution, name changes, step parent adoptions, paternity issues, child abuse and neglect, prenuptial agreements, mediation and arbitration.

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