In the January 2016 decision Anthony C. Major v. Julie Maguire, the New Jersey Supreme Court clarified the pleading standards and case management procedures in grandparent visitation actions. The paternal grandparent plaintiffs in this case sought an order compelling visitation under New Jersey’s Grandparent Visitation Statute. The grandparents were significantly involved in the child’s life from birth, through the parents’ divorce and through the father’s cancer diagnosis. While the parents had joint legal and physical custody of the child, the grandparents spent significant time with the child while in the father’s custody. The grandmother enjoyed increased involvement with the caregiving in the latter stages of the father’s illness. After the father passed away, the mother decreased the paternal grandparents’ access to the child, prompting the grandparents to commence the visitation action.
Pursuant to the New Jersey Supreme Court’s directive in Moriarty v. Bradt, a grandparent must make a prima facie showing of harm to the child at the pleading stage. The trial court in Major alleged that the grandparents had failed to make the prima facie showing in their pleadings and, after permitting the grandparents to supplement their complaint with non-expert testimony, granted the mother’s informal motion to dismiss. The trial court further found that the complaint was premature because the mother had not yet denied visitation “with finality.”
In reversing the trial court’s decision, the Appellate Division relied on its own recent decision in R.K. v. D.L., which advocates a fact-sensitive case management strategy designed to assist the judge in determining whether the prima facie showing has been made and in gauging the need for discovery. R.K. set forth a non-exhaustive list of issues to be considered at a case management conference including: the harm to the child, the possibility of settlement, whether pendente lite relief is warranted and whether expert testimony will be required. Importantly, the R.K. court held that grandparent visitation actions should not be treated as summary in nature.
The New Jersey Supreme Court affirmed the R.K. decision in part, clarifying the appropriate procedures for case management in grandparent visitation actions. Striking a balance between the grandparents’ opportunity to meet their burden under the statute and case law with the burdens imposed on families in such actions, the Court turned to the New Jersey Court Rules for instruction. The Major Court held that the approach reflected in Rule 5:5-7(c) strikes the appropriate balance: the trial court must hold initial and final case management conferences and enter an order addressing the full list of issues set forth in R.K. only in grandparent visitation cases that warrant assignment to the complex track. Visitation cases that are not complex may be handled as summary actions, with or without case management and discovery at the judge’s discretion.
Without elaborating on what types of grandparent visitation cases would be considered “complex,” the Court held that a party seeking complex designation may file a non-conforming complaint to supplement the form pleading required in non-dissolution matters, permitting the party the opportunity to make a prima facie showing of harm at the pleading stage. Informed by the pleadings, the trial court may then make a considered judgment about the complexity of the case and the need for discovery.
The Court further reiterated its preference for alternative dispute resolution and noted that all parties should make efforts to resolve the issues without resorting to litigation. However, the Court held that there is no requirement that visitation be denied with finality before grandparents threaten or institute litigation. Accordingly, the Court remanded to the trial court with instruction to permit the matter to proceed beyond the pleading stage and to manage the case as a complex matter.
The Court’s permission to deviate from the form pleading required in non-dissolution matters provides grandparents with a meaningful opportunity to make their prima facie showing at the pleading stage. While grandparent plaintiffs may request that their action be treated as complex, the designation is ultimately decided by the trial court, which continues to exercise significant discretion in shaping case management strategies. It remains to be seen what types of grandparents visitation actions will be considered “complex” by the trial court.
