In the reported matter of R.K. and A.K. v. D.L., Jr., A-2338-12T1, the subject matter concerned an appeal by the maternal grandparents relating to a request for visitation with the child (Olga) born of their recently deceased daughter. The parents were separated by divorce. The grandparents in that matter, while having an extensive relationship with the child prior, moved to Florida in 2009, but continued frequent telephone contact and occasional visits with the child. Ultimately, the relationship between the child’s father and the maternal grandparents deteriorated to the point that phone calls lessened and/or were eliminated. This Court reversed and remanded the trial court’s decision to dismiss the grandparents’ complaint.
The case sets forth a substantial new holding relative to a grandparent’s right to discovery. “Against this regulatory backdrop, we now hold that a complaint seeking grandparent visitation as the principal form of relief should not be automatically treated by the Family Part as a summary action requiring expedited resolution, merely because it bears an FD docket number. As this case illustrates, such a default approach can be inconsistent with sound principles of judicial management, and potentially inhibit the grandparents’ due process rights to prosecute their case in a manner likely to produce a sustainable adjudicative outcome.” See page 24. Moreover, the case sets forth that “the vicinage Family Part Division Manager shall designate the matter as a contested case after joinder of issue and refer the case for individualized case management by a Family Part judge selected by the vicinage Presiding Judge of Family.” See page 30. “Grandparents seeking to overcome a presumptively valid parental objection to visitation must be afforded the opportunity to gather the evidence necessary to meet this burden of proof.” See page 49.
This Court stated that “The court erred in granting defendant’s motion to dismiss because the record shows the parties have clear disagreements concerning the nature and significance of key events in their lives. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c). Most importantly, the parties’ disagreements are rooted in their seemingly irreconcilable perceptions of how these tragic events have affected Olga’s emotional wellbeing. See page 3.
The Court further stated that “It was also unfair for the trial court to base its decision to dismiss plaintiffs’ case based in large part on their failure to produce expert testimony, while the case was at its embryonic phase and after denying them the opportunity to engage in discovery.” See page 5.
The Court stated “…it is worth emphasizing that the grandparents can meet this burden [burden imposed by Moriarty on grandparents] by presenting either factual or expert testimony. In determining the question of harm, the court may rely on the death of a parent or the breakup of the child’s home through divorce or separation.” See page 42 of decision, (citing Moriarty v. Bradt, 177 N.J. 84 (2003)).
If you are seeking visitation with your grandchildren, it is important that you seek out an attorney who is experienced with the ever-changing legal and procedural rules in New Jersey courts.
John E. Clancy, Esq.
