In 2016, the New Jersey Supreme Court addressed the important issue of grandparent/sibling visitation in Major v. Maguire, 224 N.J. 1 (2016). In this matter, one parent of the child passed away and the remaining, living parent cut off the grandparents from the child.
The Court initially addressed this issue in Moriarty v. Bradt, which created a different burden for grandparent visitation than for normal parenting time. As the Major Court identified, the burden for grandparent visitation is as follows: “When the child’s parent or parents object to the proposed visitation, the grandparent seeking such visitation must prove, by a preponderance of the evidence, that denial of his or her application would result in harm to the child.” It is important to note that this is a different standard than the usual ‘best interests of the child.’ The Court had previously discussed how the New Jersey Grandparent Visitation Statute, N.J.S.A. 9:2-7.1, infringes on a parent’s constitutional right to parental autonomy and therefore is subject to strict scrutiny (N.J.S.A. 9:2-7.1 also addresses sibling visitation identically).
N.J.S.A. 9:2-7.1 delineates eight (8) factors that the Court should consider when determining whether the grandparent visitation would result in harm to the child: (1) the relationship between the child and the applicant, (2) the relationship between each of the child’s parents or the person with whom the child is residing and the applicant, (3) the time which has elapsed since the child last had contact with the applicant, (4) 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 residing, (5) if the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child, (6) the good faith of the applicant in filing the application, (7) any history of physical, emotional or sexual abuse or neglect by the applicant, and (8) any other factor relevant to the best interests of the child.
If the grandparent meets the burden and the trial court finds that a grandparent has shown that the denial of visitation would result in harm to the child, the presumption is overcome. ‘Following such a finding, the parent is obliged to offer a visitation schedule, and if the grandparents agree to that schedule, that will be the end of the inquiry. If the parties are unable to agree on a visitation schedule, the trial court approves a schedule that it finds is in the child’s best interest, based on the relevant factors [listed above].’
The Court, in Major, set up a standard case management schedule for these types of visitation cases. The Court permitted the matter to be designated as ‘complex’ and set forth an initial schedule for the trial court to follow. Moreover, ‘the judge should meet with the parties and counsel, if available, as soon as practical…, to determine, on the record: (1) the nature of the harm to the child alleged by [applicant]; (2) the possibility of settlement through mediation or as otherwise provided in [the Court Rules]; (3) whether [temporary] relief is warranted; (4) the extent to which any of the facts related to the statutory factors identified in N.J.S.A. §9:2-7.1 can be stipulated by the parties; (5) whether discovery is necessary, and if so, the extent and scope of the discovery…; (6) whether expert testimony will be required, and if so, the time for submission of the expert's report and curriculum vitae, the time for submission of [any] rebuttal report if any, and whether deposition of the expert(s) will be required or permitted; (7) a protocol for the filing of motions, including motions to compel discovery, motions seeking protective orders to exclude or limit evidence based on an assertion of privilege, or because the release of the information would adversely affect the child's best interest, or unduly infringe upon the privacy rights of the custodial parent; and (8) a tentative date for the filing of dispositive motions and/or a plenary hearing if necessary to adjudicate [applicant’s] complaint and resolve any material facts in dispute.”
Lastly, the Court noted that, ‘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.’ In essence, the Court is advising the trial courts to review and potentially decide complex grandparent visitation cases by summary judgment, if the facts permit.