Battle Over Grandparent Visitation Rights
- May 18, 2014
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In the recent NJ Appellate Division case, Major v. Maguire, grandparent visitation rights were sought pursuant to N.J.S.A. 9:2-7.1, but the case was dismissed by the Family Court because the Plaintiff’s failed to make a prima facie case. The Plaintiffs, Anthony and Suzanne Major are the paternal grandparents of a 6 year old girl who was referred to as “Jane” for the purposes of the court’s opinion to protect her privacy. The Defendant, Julie Di Liberto is Jane’s biological mother and unfortunately, Jane’s father died two months before the Plaintiff’s filed their complaint seeking visitation with their grandchild under a New Jersey statute, N.J.S.A. 9:2-7.1. The Family Court dismissed the Plaintiff’s complaint without conducting an evidentiary hearing or allowing the parties to engage in discovery. In addition, the court did not hold a case management conference or otherwise make any effort to indentify the issues in the case or attempt any mediation or settlement offers. In the appeal, the Plaintiff’s argued that the Family Court erred in dismissing their complaint because they believed that they established a prima facie case to obtain the relief they were seeking as required by N.J.S.A. 9:2-7.1 and Moriarty v. Bradt, 177 N.J. 84 (2003). Further, the Plaintiff claimed that the court abused its discretion in not allowing discovery or testimony on the issue. The Defendant argued that the trial court properly dismissed the complaint because the Plaintiff’s failed to overcome her valid objections to visitation being that she is Jane’s mother. Also, Defendant argued that the court did not abuse its discretion under Rule 5:5-4(a) in denying discovery or conducting a case management conference because the nature of the action required an expedited resolution. The Appellate Court remanded the case back to the Family Court to adjudicate the grandparent visitation issue under the procedural guidelines held in R.K. v. D.L., 434 N.J. Super. 113, 137-40 (App. Div. 2014). The Appellate Division directed that the lower court apply the statutory standards that were established in N.J.S.A. 9:2-7.1 and the procedural and substantive approach that the Family Court must use in adjudicating grandparent visitation complaints, as this approach is grounded in the constitutional concerns expressed in the Moriarty decision and in N.J.S.A. 9:2-7.1. According to the statute, the court must consider the following factors in making its decision to award visitation to a grandparent: • The relationship between the child and the grandparent seeking visitation rights • The amount of time since the child had contact with the grandparent • The relationship between each of the child’s parents or the person with whom the child is living and the grandparent • The effect that such visitation will have on the relationship between the child and the child’s parents or the person with whom the child is living • The good faith of the grandparent who is seeking visitation • If the parents are divorced or separated, the parenting time arrangement that exists between the child and his or her parents • Any history of physical, emotional, or sexual abuse or neglect by the applicant • Any additional factor relevant to the best interest of the child If you anticipate that you would like to petition the court to obtain grandparent’s visitation rights it is imperative that you seek out the advice of an experienced attorney who can evaluate your case and advise you on your rights and obligations. For more information about grandparent visitation rights, custody and visitation, parenting time, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.