SOME NJ GRANDPARENT VISITATION CASES REQUIRE DISCOVERY

ggGrandparents love seeing their grandchildren and watching them grow. Unfortunately, when a couple is either in an argument or going through a divorce, this may have an impact on the amount of time that grandparents are able to see their grandchildren. At the present time, grandparent visitation is extremely limited, after going through almost two decades of being liberally granted. This is because litigation implicates the parents’ constitutional rights and a grandparent’s right to hale a parent into court was limited where the parent’s fitness was not in dispute.

The New Jersey Supreme Court in Major v. Maguire ruled that the State grandparent visitation statute may warrant designation as complex litigation, complete with discovery and case management conferences. This decision has an immense impact on grandparent visitation rights. Albeit, this still may require a vast amount of litigation.

The Court stated that, in grandparent visitation cases, the Court must strike a balance between a litigant’s need to meet his burden under the statue and case law and the potential burden on the family’s privacy and finances. The Court stated that some grandparent visitation cases may require assignment to the complex track while others may be handled as summary actions, without discovery or case management.

The Court adopted the approach stated in Rule 5:5-7(c) which requires a trial court, in grandparent visitation cases warranting assignment to the complex tract, to hold initial and final case management conferences and to enter an order addressing the full list of issues set forth in R.K. v. D.L., including whether discovery is necessary and whether expert testimony will be required.

The Court stated that family judges have broad discretion to tailor the proceedings but should ensure that the best interests of the child remain paramount. The Court stated that any discovery should be carefully circumscribed to prevent or minimize intrusion on the privacy of the child and his/her family. The Court emphasized that no matter how difficult the circumstance may be, the litigants’ interests are not the primary concern. Instead, the courts’ focus, and that of the parties, must be on the welfare of the child.

The court outlined six principals for judges managing grandparent visitation cases: (1) Rule 5:5-7(c) should guide case managements; (2) a plaintiff seeking to have a matter designated as complex should file a non-conforming complaint to augment the form pleading required by Directive 8-11; (3) if discovery is required, the parties should work together to coordinate and streamline the process (4) expert testimony may be required for grandparents to meet their burden; (5) if grandparents have been allowed to conduct fact or expert discovery, a trial court should not hesitate to dismiss an action without conducting a full trial if the grandparents cannot make the required showing of harm; and (6) trial courts should encourage parties to mediate or arbitrate visitation actions.

The court had to be careful not to intrude on a parent’s constitutional right to parent their child. While this decision provides grandparents a road map for parenting time with grandchildren, it does not come without many hurdles. When children are involved court consider, among other factors, the best interest of that child. Parenting time can be a very emotional issue between separated parents and grandparents. Call us if you have any questions. We can help.

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