Anthony C. Major v. Julie Maguire(074345) , 224 N.J. 1 ( 2016 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Anthony C. Major v. Julie Maguire (A-110-13) (074345)
Argued September 17, 2015 – Decided January 12, 2016
PATTERSON, J., writing for a unanimous Court.
In this appeal, the Court addresses the procedure for case management and for determining whether a
grandparent, seeking an order compelling visitation under the Grandparent Visitation Statute, has made a prima facie
showing of harm to the child sufficient to withstand a motion to dismiss.
Plaintiffs’ granddaughter was born in 2007. Her parents, Anthony Major and defendant Julie Maguire,
separated in December 2009 after Major was diagnosed with cancer. Thereafter, they had joint legal custody of the
child. Prior to her son’s separation from defendant, plaintiff Suzanne Major visited her granddaughter
approximately once every two weeks; thereafter, she visited the child at her son’s home every weekend, and took
her on trips and vacations. Her contact with the child increased in frequency as Major’s health declined. Plaintiff’s
husband also visited the child, and often cared for her while Major was undergoing medical treatment. Following
Major’s death on February 21, 2013, plaintiffs asserted that Maguire had permitted them to see their granddaughter
only twice in four months, for a brief visit at a skating rink and for five minutes after a dance recital.
Plaintiffs commenced this action for an order compelling visitation under the Grandparent Visitation
Statute, N.J.S.A. 9:2-7.1. At an initial hearing, defendant’s counsel argued that plaintiffs had failed to establish a
prima facie showing of harm to the child in the absence of visitation, and informally moved for dismissal of the
complaint with prejudice. The trial court stated that the complaint failed to make the necessary showing of harm.
The court permitted plaintiffs to supplement the complaint with their testimony, but did not allow expert testimony
on the issue of harm. The evidence that plaintiffs presented expressed their view that their granddaughter would
suffer harm if deprived of a continued relationship with them. The trial court held that the complaint, as amended
by plaintiffs’ testimony, failed to demonstrate a particularized harm to the child in the absence of grandparent
visitation. The court further found the complaint to be premature because there was no showing that the defendant
had denied visitation with finality after efforts to resolve the matter. The court dismissed the complaint.
The Appellate Division reversed. The panel invoked the procedural guidelines set forth in R.K. v. D.L.,
434 N.J. Super. 113 (App. Div. 2014), and concluded that the trial court’s approach was inconsistent with
governing statutory and case law. The panel remanded to the trial court with directions to re-examine the complaint
under R.K. This Court granted certification. 218 N.J. 530 (2015).
HELD: Plaintiffs, who commenced an action under the statute, alleged in detail their involvement in their
granddaughter’s life from birth and contended that their alienation from the child will cause her harm. Based on
these allegations, plaintiffs established a prima facie showing of harm to the child at the pleading stage, as required
by Moriarty v. Bradt, 177 N.J. 84 (2003), cert. denied, 540 U.S. 1177 (2004). The trial court should have denied
defendant’s motion to dismiss and given plaintiffs the opportunity to satisfy their burden of proving harm.
Procedural guidelines are now established for proceedings under the statute.
1. In light of the infringement on the fundamental right to parental autonomy effected by the statute, this Court
recognized in Moriarty that the statute is subject to strict scrutiny, and that the need to avoid harm to the child is the
only state interest warranting grandparent visitation over the wishes of a fit parent. This Court therefore augmented
the statutory best-interests benchmark with a threshold determination of harm, requiring the grandparents to
establish, by a preponderance of the evidence, that visitation is necessary to avoid harm to the child. Absent a
showing of harm, a trial court may not mandate visitation pursuant to the best-interests factors. (pp. 12-20)
2. The Court establishes the following principles for addressing procedural matters in actions under the statute,
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which are patterned after the procedure set forth in R.K., and which require a fact-sensitive analysis:
(a) The limitations imposed in summary actions may deprive a litigant of an opportunity to meet his or her
burden under the statute and case law; however, the case management procedures of R.K. may impose burdens on
the privacy and resources of a family, and are neither necessary nor appropriate in every case. Accordingly, the
approach to case management reflected in Rule 5:5-7(c) strikes the appropriate balance. Case management
conferences and the other proceedings referenced in the Rule are appropriate only in cases that warrant assignment
to the complex track. For such actions, the case management recommendations in R.K. provide a practical template.
Applications that are not complex may be handled as summary actions, with or without case management and
discovery as authorized by Rule 5:4-4(a). (pp. 24-27)
(b) When a party requests that the matter be designated as complex, plaintiff should ordinarily file a non-
conforming complaint, as permitted by Rule 5:4-2(i), to supplement the form pleading required by Directive 08-11.
Plaintiffs will thereby have the opportunity to present a prima facie showing of harm and address the factors stated
in the statute without the constraints of a limited form pleading. A parent opposing visitation should use his or her
responsive pleading to identify issues on which the parties agree and counter the grandparents’ allegations on
disputed issues. Informed by the pleadings, the trial court can make a considered judgment about the complexity of
the matter, the need for fact or expert discovery, and the issues to be resolved. (pp. 27-28)
(c) If fact discovery is required, the court and the parties should coordinate and streamline the process, and
any discovery should be circumscribed to prevent or minimize intrusion on the privacy of the child and the family.
Similarly, when a plaintiff seeks to present expert testimony to meet his or her burden, trial courts should be
sensitive to the impact of involvement of an expert on family resources, protective of the privacy of the child, and
mindful of an expert’s potential value to the court and the parties in suggesting a resolution of the dispute. (pp. 28-
30)
(d) The trial court should not hesitate to dismiss an action without a full trial if the grandparents cannot
sustain their burden to make the required showing of harm. Trial courts should encourage parties to mediate or
arbitrate grandparent visitation actions in accordance with New Jersey’s strong policy in favor of alternative dispute
resolution. (p. 30)
3. Applying these principles, the trial court erred when it dismissed the complaint. Plaintiffs’ pleadings satisfy the
requirements of Moriarty for a prima facie showing of harm to the child because: (1) plaintiffs demonstrated that
their granddaughter enjoyed a close relationship with her father, who shared custody with her mother, and contended
that his death caused a major trauma in her life; and (2) plaintiffs presented evidence that they had maintained a
close bond with their granddaughter prior to her father’s death, and assumed significant responsibility for her care
during her father’s parenting time. The recent death of the child’s father, in concert with plaintiffs’ allegation that
the child was deprived of the consistent presence of her grandmother, gave rise to a prima facie showing of harm.
The frequency and nature of the grandfather’s contacts with the child also satisfied his burden of establishing a
prima facie showing of harm at the pleadings stage. (pp. 31-34)
4. While all parties should make efforts to resolve grandparent visitation issues without resort to litigation, there is
no requirement that visitation be denied with finality before grandparents threaten or institute litigation. The trial
court’s rejection of plaintiffs’ complaint as premature was therefore improper. (pp. 34-35)
5. On remand, the trial court need not re-examine the complaint to determine whether plaintiffs have established a
prima facie showing of harm to the child. The trial court should permit the matter to proceed beyond the pleading
stage, and it should be managed as a complex matter. (pp. 35-36)
The judgment of the Appellate Division is AFFIRMED AS MODIFIED, and the matter is REMANDED
to the trial court.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA and SOLOMON; and JUDGE CUFF
(temporarily assigned) join in JUSTICE PATTERSON’S opinion. JUSTICES ALBIN and FERNANDEZ-
VINA did not participate.
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SUPREME COURT OF NEW JERSEY
A-110 September Term 2013
074345
ANTHONY C. MAJOR and
SUZANNE MAJOR,
Plaintiffs-Respondents,
v.
JULIE MAGUIRE n/k/a
JULIE DI LIBERTO,
Defendant-Appellant.
Argued September 17, 2015 – Decided January 12, 2016
On certification to the Superior Court,
Appellate Division.
Theresa A. Lyons argued the cause for
appellant (Lyons & Associates, attorneys;
Ms. Lyons and Kristyl M. Berckes, on the
briefs).
Laurie L. Newmark argued the cause for
respondents (Townsend, Tomaio & Newmark,
attorneys; John E. Clancy, on the briefs).
Brian G. Paul argued the cause on behalf of
amicus curiae New Jersey State Bar
Association (Miles S. Winder III, President,
attorney; Paris P. Eliades, of counsel; Mr.
Paul, Mr. Eliades, Jeralyn L. Lawrence, and
Cheryl E. Connors, on the brief).
JUSTICE PATTERSON delivered the opinion of the Court.
In Moriarty v. Bradt, 177 N.J. 84 (2003), cert. denied, 540
U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004), the Court
addressed the standard that grandparents must meet to secure an
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order compelling visitation pursuant to the Grandparent
Visitation Statute, N.J.S.A. 9:2-7.1. The Court reasoned that
because a judicial order compelling grandparent visitation
infringes on parents’ fundamental right to raise their children
as they see fit, N.J.S.A. 9:2-7.1 is subject to strict scrutiny.
Id. at 117-18. The Court determined that the statute could
survive a constitutional challenge only if a “threshold harm
standard” augmented the “best interests of the child” factors
prescribed by the Legislature. Ibid. It ruled that 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. Ibid. It
further held that if the grandparent meets that burden, the
presumption in favor of parental decision-making is overcome,
and the court sets a visitation schedule in the best interests
of the child. Ibid.
In this appeal, the Court addresses the procedures by which
a Family Part judge determines whether a grandparent has made a
prima facie showing of harm to the child sufficient to withstand
a motion to dismiss, and manages the case if it continues beyond
the pleading stage. Those issues arose in the context of a
request by plaintiffs Anthony C. Major and Suzanne Major for
visitation with their young granddaughter following the death of
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their son. Defendant Julie Maguire, the child’s mother, allowed
the grandparents only two brief visits with their granddaughter
after their son died.
Plaintiffs filed an action under N.J.S.A. 9:2-7.1 in the
Family Part, seeking an order compelling defendant to allow them
periodic visits with their granddaughter. The trial court
determined that in their complaint, supplemented by their
testimony, plaintiffs failed to present a prima facie showing
that the child would be harmed unless visitation were ordered.
It found that plaintiffs had improperly instituted litigation
before defendant had denied visitation with finality, and
dismissed the complaint. Relying on its decision addressing
case management issues in grandparent visitation litigation in
R.K. v. D.L., 434 N.J. Super. 113 (App. Div. 2014), the
Appellate Division reversed the trial court’s determination and
remanded for the trial court’s reevaluation of the sufficiency
of plaintiffs’ complaint.
We reaffirm the holding of Moriarty that, in order to
overcome the presumption of parental autonomy in the raising of
children, grandparents who bring visitation actions under
N.J.S.A. 9:2-7.1 must prove by a preponderance of the evidence
that denial of visitation will harm the child. This case,
however, arises not from a court’s findings on a full record,
but the grant of a motion to dismiss under Rule 4:6-2(e) at the
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pleading stage, in which plaintiffs must be afforded every
reasonable inference of fact. Here, plaintiffs alleged in
detail their involvement in their granddaughter’s life prior to
the death of their son and contended on that basis that their
alienation from the child caused her harm. The trial court
should have denied defendant’s motion to dismiss and given
plaintiffs the opportunity to satisfy their burden to prove
harm.
Accordingly, we modify and affirm the judgment of the
Appellate Division and remand to the trial court for further
proceedings.
I.
The child at the center of this case was born in 2007. Her
parents, Anthony C. “Chris” Major and defendant, cohabited
between early 2007 and late 2009. Plaintiff Suzanne Major, the
mother of Chris Major, contends that during the period in which
her son and defendant lived together, she visited her
granddaughter approximately once every two weeks. Plaintiff
Anthony Major, who was divorced from plaintiff Suzanne Major in
1997, is Chris Major’s father. The record does not reveal the
extent to which plaintiff Anthony Major maintained a
relationship with his granddaughter during the first two years
of her life.
4
In August 2009, Chris Major was diagnosed with cancer.
Four months later, he and defendant separated, and he moved from
the residence that he had shared with defendant and their
daughter.
In February 2010, defendant and Chris Major entered into an
agreement regarding the custody of their daughter. Under the
terms of that agreement, the parents had joint legal custody,
and the child spent about half of her time with each parent.
Defendant was designated as the parent of primary residence, and
Chris Major was the parent of alternate residence. Although a
dispute between defendant and Chris Major relating to “parenting
time and extracurricular activities” required court intervention
in late 2011, that dispute was resolved, and the parents entered
into a modified custody agreement that maintained their shared
parenting arrangement.
Plaintiff Suzanne Major contends that, following her son’s
separation from defendant, she frequently spent time with her
granddaughter. She asserted before the trial court that she
visited the child at her son’s home every weekend, that the
child visited her home about once a month, that she attended
dance recitals, and that she brought the child to “take your
child to work day” annually for three consecutive years. She
testified that she, her son, and her granddaughter took annual
trips to Disney World, that they also travelled to Key West,
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Florida, and New York City in 2012, and that her granddaughter
stayed at her vacation home in Maine.
According to his testimony before the trial court,
following his son’s separation from defendant, plaintiff Anthony
Major visited his granddaughter approximately once every two
weeks, often caring for her while her father underwent cancer
treatment. He stated that he purchased a boat in 2011, and that
in the two years that followed, he took his granddaughter on
frequent fishing trips.
According to plaintiffs, in September 2012, Chris Major’s
health declined, and plaintiff Suzanne Major assumed greater
responsibilities in her son’s home. She testified that she took
time off from work to assist her son, stayed at his home for
half of each week, cooked the family meals, picked her
granddaughter up at school two days per week, assisted with
homework, and also played with the child. During the last weeks
of Chris Major’s life, plaintiff Suzanne Major lived with him on
a full-time basis and cared for him. Plaintiffs contend that
during Chris Major’s final illness, plaintiff Anthony Major also
spent time at his son’s home with his granddaughter.
Following the death of plaintiffs’ son on February 21,
2013, the relationship between plaintiffs and defendant was
antagonistic. According to plaintiffs, it was one of Chris
Major’s “last wishes” that his parents bar defendant and her
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family from his funeral. Defendant did not permit her five-
year-old child to attend the funeral without her. Defendant
maintains that plaintiffs attempted to undermine her
relationship with her daughter. According to defendant,
plaintiffs called her disparaging names in the child’s presence,
and on one occasion, plaintiff Suzanne Major closed a door in
defendant’s face in order to speak with her granddaughter
privately, “causing the child fear.”
Testifying before the trial court, plaintiffs stated that
defendant had permitted them to see their granddaughter only
twice in the four months since Chris Major’s death, initially in
a half-hour visit at a skating rink and then in a five-minute
meeting after a dance recital. According to plaintiffs, the
constraints on their contact with their granddaughter prompted
them to file their claim for grandparent visitation under
N.J.S.A. 9:2-7.1.
II.
Plaintiffs commenced this action by filing a uniform
“Verified Complaint” form complaint in the Family Part.1 The
1 Plaintiff’s complaint was filed on a form issued by the
Administrative Office of the Courts pursuant to Directive 08-11,
dated September 2, 2011. Directive 08-11 provided that actions
under the Non-Dissolution docket of the Family Part would be
processed “as summary actions, with additional discovery at the
discretion of the judge.” Among the many categories of actions
encompassed by the Non-Dissolution docket that are subject to
7
trial court promptly scheduled a hearing to consider the request
for visitation. After the trial court granted a brief
adjournment of the hearing, defendant filed an answer and
counterclaim in which she requested that the trial court deny
plaintiffs’ application for visitation and award legal fees to
her.
At the initial hearing, plaintiffs requested a “very brief”
discovery schedule so that they could present expert testimony
and explore mediation, and requested an opportunity to visit
their granddaughter in the interim. Defendant’s counsel advised
the trial court that the child was doing well in school and was
happy at home with her mother, stepfather, and newborn brother.
Defendant’s counsel argued that plaintiffs had failed to present
the mandated prima facie showing of harm to the child, and
informally moved before the trial court for the dismissal of
plaintiffs’ complaint with prejudice.
The trial court advised plaintiffs that they would not be
entitled to discovery in the absence of a prima facie showing
that denial of visitation would impose a particularized,
identified harm on the child and that their complaint had failed
to present such a showing. The court stated, however, that it
Directive 08-11 are “actions by non-parent relatives seeking . .
. visitation with minor children.”
8
would permit plaintiffs to supplement their complaint by
testifying on direct examination, with no cross-examination
allowed.
When the hearing resumed the following day, plaintiffs
sought leave to present the testimony of an expert witness on
the question of harm. The trial court declined that request,
stating that before a parent is compelled to litigate a
grandparent visitation action, the grandparents should
demonstrate that they can meet their threshold burden of proof.
Plaintiffs then testified about their son’s relationship with
defendant, their involvement in their granddaughter’s life
before and during her father’s illness, and their efforts to
maintain contact with the child after their son’s death.
Plaintiffs stated that their granddaughter had no relationship
with any other relatives on her father’s side of her family.
Plaintiffs expressed their view that if their granddaughter
was deprived of a continued relationship with them, she would
suffer harm. Plaintiff Suzanne Major testified that her
granddaughter had not only “lost her daddy, but she’s losing his
family that she has known for almost six years,” and stated her
strong belief “that she needs us in her life and we need her in
our life.” Plaintiff Anthony Major testified that shortly after
the child’s father “was ripped out of her life by a disease,”
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“we are being ripped out of her life also and no good can come
of that[.]”
The trial court held that the complaint, as amended by
plaintiffs’ testimony, failed on two grounds to satisfy
plaintiffs’ threshold burden. First, the court found that
plaintiffs had not demonstrated a particularized harm to the
child in the absence of grandparent visitation. Second, relying
on the Appellate Division’s decision in Wilde v. Wilde, 341 N.J.
Super. 381, 397 (App. Div. 2001), the trial court stated that
before commencing litigation, grandparents should be required to
make “substantial efforts at repairing the breach” in their
relationship with the child’s parent, and that litigation
ordinarily should not be threatened before the parent has denied
visitation “with finality.” The court dismissed the complaint
without prejudice, and denied plaintiffs’ application for
visitation.
An Appellate Division panel reversed the trial court’s
judgment. The panel invoked the procedural guidelines set forth
in its decision in R.K., supra, 434 N.J. Super. at 137-40.
Although the panel noted that R.K. had not yet been issued when
the trial court ruled, it concluded that the trial court’s
approach was inconsistent with governing statutory and case law,
and remanded so that the trial court could reexamine plaintiffs’
10
complaint in compliance with the Appellate Division’s direction
in R.K..
We granted certification. 218 N.J. 530 (2015).
III.
Defendant urges the Court to overrule the Appellate
Division’s decision in R.K.. She argues that by urging trial
courts to allow discovery and case management in all grandparent
visitation cases, the Appellate Division in R.K. contravened
this Court’s holding in Moriarty. In the alternative, defendant
argues that the case management procedures set forth in R.K. are
burdensome and confusing to courts and litigants and should be
rejected for that reason. She contends that the trial court
properly considered plaintiffs’ failure to attempt mediation as
a ground for dismissal of the complaint.
Plaintiffs counter that the Appellate Division’s decision
in R.K. does not alter the burden imposed by this Court in
Moriarty but provides a thoughtful and careful procedural
approach that safeguards the rights of parents and grandparents.
According to plaintiffs, the Appellate Division properly
clarified in R.K. that summary proceedings are an inappropriate
procedural vehicle for the adjudication of grandparent
visitation disputes and permitted discovery because the parties
disputed the question of harm to the child. They note that in
R.K., the Appellate Division endorsed mediation as a case
11
management device, and represent that defendant refused to
attempt mediation to resolve the parties’ dispute.
Amicus Curiae New Jersey State Bar Association (NJSBA)
urges the Court to reverse the Appellate Division’s judgment and
reinstate the trial court’s judgment dismissing plaintiffs’
complaint without prejudice. NJSBA argues that it would violate
parents’ constitutional rights to implement the case management
and discovery procedures prescribed by the Appellate Division in
R.K., unless the grandparents’ complaint demonstrates an
identifiable harm specific to the child that warrants judicial
intervention. NJSBA advocates a two-step procedure whereby a
trial court initially determines whether the grandparents have
presented prima facie evidence of harm, viewing the facts in the
light favorable to the grandparents, and addresses case
management only after a finding that the mandated prima facie
showing has been made.
IV.
A.
As do its counterparts in our sister states, New Jersey’s
Grandparent Visitation Statute confers on a child’s grandparent
or sibling standing to file an action for an order compelling
12
visitation. Originally signed into law in 1972 and twice
amended,2 N.J.S.A. 9:2-7.1 provides:
a. A grandparent or any sibling of a child
residing in this State may make application
before the Superior Court, in accordance with
the Rules of Court, for an order for
visitation. It shall be the burden of the
applicant to prove by a preponderance of the
evidence that the granting of visitation is in
the best interests of the child.
b. In making a determination on an application
filed pursuant to this section, the court
shall consider the following factors:
(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.
2As amended a year after its enactment, N.J.S.A. 9:2-7.1
authorized a grandparent to seek visitation only in the event of
the death of one or both parents, or the parents’ separation or
divorce. N.J.S.A. 9:2-7.1 (as amended by L. 1973 c. 100, § 1).
In 1993, the Legislature amended the statute again to its
current form, eliminating the requirement that one or both
parents be deceased, or that the parents be divorced or
separated, in order for a grandparent to bring an action. L.
1993 c. 161, § 1.
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c. With regard to any application made
pursuant to this section, it shall be prima
facie evidence that visitation is in the
child’s best interest if the applicant had, in
the past, been a full-time caretaker for the
child.
As the Court noted in Moriarty, supra, the “structure [of
N.J.S.A. 9:2-7.1] underscores the fact-sensitive nature of the
inquiry by detailing seven particularized considerations for the
court and instructing the court to consider as well, ‘any other
factor’ relevant to the child’s best interests.” 177 N.J. at
100.
By virtue of its intrusion on parental autonomy, N.J.S.A.
9:2-7.1 implicates due process principles. Federal
jurisprudence, reaffirmed over nearly a century, recognizes that
the Due Process Clause of the Fourteenth Amendment protects the
“right[] . . . to direct the education and upbringing of one’s
children.” Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.
Ct. 2258, 2267, 138 L. Ed. 2d 772, 787 (1997); see also
Wisconsin v. Yoder, 406 U.S. 205, 232-33, 92 S. Ct. 1526, 1541-
42, 32 L. Ed. 2d 15, 35 (1972). In actions based upon state
grandparent visitation statutes, parents have invoked this
constitutional principle. See, e.g., McGarity v. Jerrolds, 429
S.W.3d 562, 566 (Tenn. Ct. App. 2013); Blixt v. Blixt, 774
14
N.E.2d 1052, 1056 (Mass. 2002), cert. denied, 537 U.S. 1189, 123
S. Ct. 1259, 154 L. Ed. 2d 1022 (2003).
In Troxel v. Granville, the United States Supreme Court
sustained a due process challenge to a “breathtakingly broad”
state statute that authorized any person to seek visitation of a
child based solely on a judicial determination that such
visitation was in the child’s best interests. 530 U.S. 57, 66-
68, 120 S. Ct. 2054, 2060-61, 147 L. Ed. 2d 49, 57-58 (2000). A
plurality of the Supreme Court declined to adopt a per se ban on
state statutes allowing nonparent visitation, or to determine a
standard of review for such statutes. Id. at 73-74; 120 S. Ct.
at 2064, 147 L. Ed. 2d at 61-62. Instead, the Supreme Court
generally reaffirmed that by virtue of a fit parent’s
fundamental due process right to raise his or her children, the
parent is entitled to a presumption that he or she acts in the
best interests of the child, and that the parent’s determination
whether to permit visitation is entitled to “special weight.”
Id. at 67-69; 120 S. Ct. at 2062-63, 147 L. Ed. 2d at 57-59.
The Supreme Court held that the parties seeking visitation had
failed to overcome the presumption that the parent’s decisions
were in the child’s best interests. Id. at 69-70, 120 S. Ct. at
2062, 147 L. Ed. 2d at 59.
The Supreme Court’s decision in Troxel, in which the
constitutionally infirm statute required no showing of harm, set
15
the backdrop for this Court’s review of New Jersey’s Grandparent
Visitation Statute in Moriarty. There, the Court considered a
surviving parent’s appeal from a trial court’s order compelling
the parent to cooperate with grandparent visitation after the
death of their daughter, who was the mother of the
grandchildren. Moriarty, supra, 177 N.J. at 92-94. The
defendant parent asserted that in light of Troxel, N.J.S.A. 9:2-
7.1 was unconstitutional and that any order of visitation
entered pursuant to that statute was invalid. Id. at 94-95.
This Court acknowledged that when the Legislature
prescribed a cause of action for grandparent visitation of minor
children in N.J.S.A. 9:2-7.1, it created a statutory remedy
unrecognized at common law. Id. at 95 (citations omitted). It
cited the United States Supreme Court’s case law with respect to
a due process right to parental autonomy, and noted that New
Jersey courts have “recognized unfailingly that deeply embedded
right in our jurisprudence as well.” Id. at 102 (citing Watkins
v. Nelson, 163 N.J. 235, 245 (2000); V.C. v. M.J.B., 163 N.J.
200, 217-18, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L.
Ed. 2d 243 (2000); In re Guardianship of K.H.O., 161 N.J. 337,
346 (1999)); see also Fawzy v. Fawzy, 199 N.J. 456, 473 (2009)
(noting primary role of parents in raising their children is
“established beyond debate as an enduring tradition to which we
have unflinchingly given voice”). In light of N.J.S.A. 9:2-
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7.1’s infringement on the fundamental right to parental
autonomy, this Court held in Moriarty that the statute is
subject to strict scrutiny and is only constitutional if it is
narrowly tailored to serve a compelling state interest. 177
N.J. at 103 (citing Glucksberg, supra, 521 U.S. at 720-21, 117
S. Ct. at 2268, 138 L. Ed. 2d at 787-88; Roe v. Wade, 410 U.S.
113, 155-56, 93 S. Ct. 705, 728, 35 L. Ed. 2d 147, 178 (1973);
Brown v. City of Newark, 113 N.J. 565, 573 (1989)).
Applying strict scrutiny to N.J.S.A. 9:2-7.1, the Court in
Moriarty concluded that the need to avoid harm to the child is
“the only state interest warranting the invocation of the
State’s parens patriae jurisdiction to overcome the presumption
in favor of a parent’s decision and to force grandparent
visitation over the wishes of a fit parent[.]” Id. at 115. The
Court held that absent a showing that the child would suffer
harm if deprived of contact with his or her grandparents, the
State could not constitutionally infringe on parental autonomy.
Ibid.
The Court, therefore, augmented the statutory best-
interests benchmark with a threshold determination of harm:
[I]n every case in which visitation is denied,
the grandparents bear the burden of
establishing by a preponderance of the
evidence that visitation is necessary to avoid
harm to the child. The grandparents’ evidence
may be expert or factual. For example, they
may rely on the death of a parent or the
17
breakup of the child’s home through divorce or
separation. . . . In addition, the termination
of a long-standing relationship between the
grandparents and the child, with expert
testimony assessing the effect of those
circumstances, could form the basis for a
finding of harm.
[Id. at 117.]
The Court held that when grandparents present a showing of
harm, the presumption in favor of parental decision-making is
overcome. Id. at 117-18. 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.” Id. at 117. 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
application of the statutory factors.” Ibid. (citing N.J.S.A.
9:2-7.1). Applying that test to the case before it, the Court
held that the trial court had “presaged our opinion by [its]
finding that visitation with the grandparents was necessary to
avoid harm to the children” and reinstated the trial court’s
visitation order. Id. at 122.
In several cases following Moriarty, this Court and the
Appellate Division held that plaintiff grandparents had failed
to make the requisite showing of harm. See New Jersey Div. of
Youth and Family Servs. v. P.W.R., 205 N.J. 17, 38-39 (2011)
(holding in context of abuse and neglect determination pursuant
18
to Title Nine, N.J.S.A. 9:6-8.21 to -8.73, grandfather failed to
show mental or emotional harm to child as a result of
restrictions on grandparent visitation); Rente v. Rente, 390
N.J. Super. 487, 494-95 (App. Div. 2007) (holding that, given
parent’s willingness to allow monthly visits, grandmother failed
to allege facts showing harm to child in absence of weekly
visitation); Daniels v. Daniels, 381 N.J. Super. 286, 288-89
(App. Div. 2005) (affirming denial of grandparents’ application
for visitation in absence of allegation or evidence of harm to
child); Mizrahi v. Cannon, 375 N.J. Super. 221, 223-25, 232
(App. Div. 2005) (reversing grant of grandparent visitation
after trial court addressed best interests test but omitted
inquiry into harm to child). These decisions underscore the
heavy burden on grandparents seeking to satisfy the threshold
requirement of Moriarty.
In short, N.J.S.A. 9:2-7.1 and our case law mandate a
meticulous, fact-specific analysis of each application for
grandparent visitation. As the Appellate Division noted in
R.K., supra, each action “brings to the court its own set of
unique challenges.” 434 N.J. Super. at 151. In the wake of
Moriarty, “potential harm to the child is the constitutional
imperative that allows the State to intervene into the otherwise
private and protected realm of parent-child relations.” Fawzy,
supra, 199 N.J. at 476. Absent a showing that the child will
19
suffer harm if grandparent visitation is denied, a trial court
may not mandate visitation pursuant to the best-interests
factors of N.J.S.A. 9:2-7.1, and should dismiss the complaint.
B.
This Court has not previously addressed in detail discovery
and other procedural issues raised by grandparent visitation
actions under N.J.S.A. 9:2-7.1. Several Appellate Division
panels, however, have considered discovery, expert opinion, and
case management questions in these matters.
In Wilde, supra, an Appellate Division panel reversed the
trial court’s order compelling the parent, who had not entirely
barred visitation, to complete a psychological evaluation and to
undergo “intensive therapy in addition to the supportive therapy
which she is currently receiving.” 341 N.J. Super. at 387, 398-
99. The panel noted that although “there may be circumstances
in which a fit parent is obliged to submit to psychological
treatment in the context of a visitation action,” the
grandparents made no showing that would justify such a remedy in
that case. Id. at 399. In Daniels, supra, another panel
rejected the grandparents’ request for unspecified discovery and
an evidentiary hearing, noting that they had failed to plead
specific facts in support of their claim, and that this Court in
Moriarty did not endorse the imposition of “expensive and time-
consuming discovery and other litigation costs on parents” in
20
every visitation action. 381 N.J. Super. at 292-93. In the
absence of a prima facie showing of harm, the Appellate Division
panel in Rente, supra, held that it was error for the trial
court to compel a psychological review of the parties and to
mandate discovery. 390 N.J. Super. at 493-95.
The Appellate Division’s most comprehensive analysis of
discovery and case management issues in grandparent visitation
litigation was set forth in R.K., supra, 434 N.J. Super. at 137-
39. There, the trial court rejected an attorney-drafted
complaint filed on behalf of grandparents seeking visitation
with their late daughter’s child. Id. at 130. Instead, the
trial court limited the grandparents to a form summary action
complaint and then dismissed the complaint on the ground that
the grandparents failed to make a prima facie showing of harm to
the child. Id. at 130, 141-42.
The Appellate Division reversed that determination,
observing that, given the showing required by Moriarty,
grandparent visitation actions should not be managed as summary
actions. Id. at 135-36. The panel held that all grandparent
visitation cases should be assigned to a particular judge for
individual case management, and that judge should “review the
pleadings and determine whether active case management is
needed.” Id. at 137-38. It recommended that in any such case,
the trial court should “first conduct a fact-sensitive analysis
21
applying the statutory factors in N.J.S.A. 9:2-7.1, to determine
whether the grandparents have presented a prima facie case
warranting the relief requested[,] . . . [and] then determine
whether the grandparents have proven . . . that visitation is
necessary to avoid harm to the child.” Id. at 144-45 (citing
Moriarty, supra, 177 N.J. at 117).
The panel deciding R.K. enumerated a non-exhaustive list of
issues for consideration at an initial case management
conference in a grandparent visitation dispute:
In furtherance of this case-sensitive
approach, we suggest the judge meet with the
parties and counsel, if available, as soon as
practical after joinder of issue, to
determine, on the record: (1) the nature of
the harm to the child alleged by plaintiff;
(2) the possibility of settlement through
mediation or as otherwise provided in Rule
5:5-5; (3) whether pendente lite 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(b)(1) through
(8) can be stipulated by the parties; (5)
whether discovery is necessary, and if so, the
extent and scope of the discovery, as
permitted by Rule 5:5-1(a), written
interrogatories, production of documents,
Rule 4:18-1, request for admissions, and
consent to release documents not within the
possession of the party –- discovery may be
completed within the time allotted in Rule
5:5-1(e), or as otherwise ordered by the
court; (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 defendant’s
rebuttal report if any, and whether deposition
of the expert(s) will be required or
permitted; (7) a protocol for the filing of
22
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 plaintiff’s
complaint and resolve any material facts in
dispute.
[Id. at 138.]
The panel held that the trial court’s dismissal of the
grandparents’ complaint, without holding a case management
conference to gauge the need for discovery, constituted error.
Id. at 151-53. Accordingly, it remanded the case for further
proceedings. Id. at 153.
In amendments effective on September 1, 2015, this Court
adopted three provisions recommended by the Supreme Court Family
Practice Committee following the Appellate Division’s decision
in R.K., supra. Rule 5:4-2(j) permits a party to request, in a
complaint or counterclaim, that his or her case be designated as
“complex.” Rule 5:4-2(i) authorizes the filing of a non-
conforming complaint, to which is appended a completed
supplement as promulgated by the Administrative Director, when a
party seeks to have a non-dissolution matter designated as
“complex” for purposes of Rule 5:5-7(c). Rule 5:5-7(c) permits
a trial court, on the application of a party or on its own
23
initiative, to assign non-dissolution cases that “cannot be
heard in a summary manner” to the complex track, “based only on
a specific finding that discovery, expert evaluations, extended
trial time or another material complexity requires such an
assignment.” Applications for complex track assignment made
after the initial hearing may be considered “upon presentation
of exceptional circumstances.” Ibid.
In cases given the “complex” designation, Rule 5:5-7(c)
requires the trial court to conduct a case management conference
and to review with the parties some of the discovery, expert
opinion, and motion practice issues identified by the Appellate
Division in R.K., supra, 434 N.J. Super. at 138. The Rule
imposes no such requirement for matters that are not deemed
“complex”; such cases are handled as summary actions. See R.
5:5-7(c) (reserving complex track procedures for “exceptional
cases” ill-suited to be managed as summary actions).
C.
In that setting, we consider a procedural framework for the
grandparents’ presentation of a prima facie showing of harm,
when a defendant challenges a grandparent visitation action by
motion to dismiss and for the management of those cases if they
progress beyond the pleading stage.
We recognize that grandparents seeking visitation are
entitled to a meaningful opportunity to make the showing of harm
24
that Moriarty requires and, if that showing is made, a
visitation schedule under the best-interests factors prescribed
by the Legislature in N.J.S.A. 9:2-7.1. 177 N.J. at 117-18. We
are also mindful that the mere pendency of a visitation claim
may impose significant burdens on a family. As Justice Kennedy
observed in his dissent in Troxel, supra,
[i]t must be recognized, of course, that a
domestic relations proceeding in and of itself
can constitute state intervention that is so
disruptive of the parent-child relationship
that the constitutional right of a custodial
parent to make certain basic determinations
for the child’s welfare becomes implicated.
The best interests of the child standard has
at times been criticized as indeterminate,
leading to unpredictable results. . . . If a
single parent who is struggling to raise a
child is faced with visitation demands from a
third party, the attorney’s fees alone might
destroy her hopes and plans for the child’s
future.
[530 U.S. at 101, 120 S. Ct. at 2079, 147 L.
Ed. 2d at 78 (Kennedy, J., dissenting)
(internal citation omitted).]
By virtue of its capacity to intrude upon the privacy of both
parent and child and consume scarce resources, the parties’
litigation may itself infringe on the parent’s due process right
to autonomy, and cause harm to the child whom the Grandparent
Visitation Statute exists to protect.
In light of the compelling interests at stake –- most
critically, the welfare of the child involved –- grandparent
visitation litigation must be conducted with sensitivity and
25
overseen with care. We derive several guiding principles for
the management of these actions from N.J.S.A. 9:2-7.1 and our
case law.
First, as applied to a complex grandparent visitation case,
the Appellate Division’s case management recommendations in
R.K., supra, 434 N.J. Super. at 138, enhance the constitutional
standard articulated in Moriarty. We concur with the panel in
R.K. that in some grandparent visitation actions, the
limitations imposed in summary actions may deprive a litigant of
an opportunity to meet his or her burden under the statute and
case law. See 434 N.J. Super. at 139. We recognize, however,
that the case management procedures envisioned by R.K. also
impose burdens on the privacy and resources of a family, and
that they are neither necessary nor appropriate in every case.
We consider the approach reflected in Rule 5:5-7(c) to
strike the appropriate balance. That Rule requires the trial
court to hold initial and final case management conferences, and
to 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. See R. 5:5-7(c). Visitation
applications that are not “complex” may be handled as summary
actions, with or without case management and discovery as
authorized by Rule 5:4-4(a). See R.K., supra, 434 N.J. Super.
at 133 (noting while summary actions are ordinarily tried
26
without case management and discovery, trial courts may order
discovery in appropriate cases); see also H.E.S. v. J.C.S., 175
N.J. 309, 324 (2003) (permitting discovery to protect due
process rights); Welch v. Welch, 401 N.J. Super. 438, 445 (Ch.
Div. 2008) (noting courts will allow discovery when good cause
shown); Depos v. Depos, 307 N.J. Super. 396, 400 (Ch. Div. 1997)
(same). Thus, when a trial court determines the need for
complex case management in a particular case, the Appellate
Division’s case management recommendations in R.K. provide a
practical template for courts and parties.
Second, when a party seeks to have the matter designated as
“complex,” the plaintiff should ordinarily file a non-conforming
complaint, as permitted by Rule 5:4-2(i), to supplement the form
pleading required by Directive 08-11. With no constraints on
the length of their pleadings, many plaintiffs will be in a
position to present a prima facie showing of harm in that
complaint without the need for intrusive discovery. For
example, in a case such as this one, the grandparent would be
able to plead a showing of harm; he or she may allege his or her
contacts with and care for a grandchild when the parent was
alive, the timing and circumstances of the parent’s death, any
changes in family relationships that followed, the nature of the
claimed harm, and other pertinent considerations. See N.J.S.A.
9:2-7.1(b)(1), (2), (3), (5), (8); Moriarty, supra, 177 N.J. at
27
117. Relevant facts within a grandparent’s knowledge should be
presented with precision and detail. Similarly, a parent
opposing visitation should use his or her responsive pleading to
identify issues on which the parties agree and counter the
grandparents’ factual allegations on disputed issues. See R.
5:4-3 (authorizing defendants in family action to file answers
conforming to Rule 4:5-3). Informed by the pleadings, the trial
court can make a considered judgment about the complexity of the
matter, the need for fact or expert discovery, and the issues to
be resolved.
Third, in the event that fact discovery is required, the
court and the parties should work together to coordinate and
streamline the process. See R. 5:5-7(c); R.K., supra, 434 N.J.
Super. at 137-38. Whether the case is designated as complex or
handled as a summary action, Family Part judges have broad
discretion to permit, deny, or limit discovery in accordance
with the circumstances of the individual case. See R. 5:4-4; R.
5:5-7(c); State in Interest of A.B., 219 N.J. 542, 554 (2014)
(noting trial court’s discretion to permit or deny discovery in
Family Part matters); R.K., supra, 434 N.J. Super. at 133
(same). Under the court’s supervision, the parties should
address only the issues in dispute: whether the grandparents
have met their burden to demonstrate harm to the child in the
absence of visitation, and, if so, what visitation schedule will
28
serve the best interests of the child, applying the factors
identified in N.J.S.A. 9:2-7.1. Moriarty, supra, 177 N.J. at
117.
Any discovery should be carefully circumscribed to prevent
or minimize intrusion on the privacy of the child and his or her
family. R.K, supra, 434 N.J. Super. at 151; see also R. 4:10-3
(authorizing courts to enter protective orders to avoid
“annoyance, embarrassment, oppression, or undue burden or
expense”). It is the rare case that will require the trial
court to embark on a comprehensive inquiry into family history
or probe the relationships of warring adults. The court,
counsel and parties should be aware that no matter how difficult
the circumstances may be, the litigants’ interests are not the
primary concern. Instead, the court’s focus, and that of the
parties, must be the welfare of the child.
Fourth, as the Court noted in Moriarty, supra, expert
testimony may be necessary for grandparents to meet their burden
under N.J.S.A. 9:2-7.1. 177 N.J. at 117; see also R.K., supra,
434 N.J. Super. at 138. Particularly in settings in which one
of the child’s parents is deceased, and the other parent has
barred or sharply limited the grandparents from contact with the
child, parties seeking visitation may not have access to current
information about the child’s status. In determining whether
expert testimony is appropriate, trial courts should be
29
sensitive to the impact of expert involvement on family
resources, protective of the privacy of the child, and mindful
of an expert’s potential value to the court and parties in
suggesting a resolution of the dispute.
Fifth, 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. To that end, a court may
dismiss summary actions pursuant to Rule 4:67-5, and decide
complex visitation cases by summary judgment under Rule 4:46-
2(c). Consistent with the due process autonomy interests
recognized in Troxel, and Moriarty, a trial court should not
prolong litigation that is clearly meritless.
Finally, trial courts should encourage parties to mediate
or arbitrate grandparent visitation actions in accordance with
New Jersey’s strong policy in favor of alternative dispute
resolution. See Gere v. Louis, 209 N.J. 486, 500 (2012) (noting
state’s policy in favor of alternative dispute resolution); Mt.
Hope Dev. Assocs. v. Mt. Hope Waterpower Project, L.P., 154 N.J.
141, 151 (1998) (same). In a meritorious case, a seasoned
mediator or arbitrator with experience in visitation and custody
issues may devise a solution for the parties’ conflict promptly
and inexpensively, to the benefit of the child and the parties.
30
D.
Applying those principles, we concur with the Appellate
Division that the trial court erred when it granted defendant’s
informal request and dismissed plaintiffs’ complaint, and that
this case should be remanded to the trial court for further
proceedings. Our remedy differs from the panel’s remedy in one
respect: the trial court need not reexamine the complaint on
remand in order to determine whether plaintiffs have alleged
sufficient facts for a prima facie showing in this case. The
grandparents have established a prima facie case that the
absence of visitation between the grandparents and their
granddaughter will harm the child.
Although defendant did not file a motion to dismiss
plaintiffs’ complaint, the trial court evidently viewed
defendant’s informal application as a motion to dismiss for
failure to state a claim upon which relief can be granted,
pursuant to Rule 4:6-2(e).3 That Rule affords to plaintiffs
3 As an action filed in the Chancery Division, Family Part, this
matter is governed “by the rules of Part IV insofar as
applicable and except as otherwise provided by the rules in Part
V.” R. 5:1-1; see also Pressler & Verniero, Current N.J. Court
Rules, comment to R. 5:1-1 (Gann 2015), (noting that the Family
Part “is a fully integrated component of the Superior Court to
which the rules governing civil and criminal proceedings in the
trial courts are applicable unless otherwise provided in Part
V”). Accordingly, Rule 4:6-2(e) governs a motion to dismiss a
Family Part complaint on the ground that it fails to state a
claim upon which relief can be granted. See Maeker v. Ross, 219
N.J. 565, 570-71 (2014).
31
“every reasonable inference of fact”; a reviewing court
“searches the complaint in depth and with liberality to
ascertain whether the fundament of a cause of action may be
gleaned even from an obscure statement of claim, opportunity
being given to amend if necessary.” Printing Mart-Morristown v.
Sharp Elecs. Corp., 116 N.J. 739, 746 (1989); see also Smerling
v. Harrah’s Entm’t, Inc., 389 N.J. Super. 181, 186 (App. Div.
2006) (noting appellate review of order of dismissal under Rule
4:6-2(e) “is plenary and we apply the same test as the Law
Division”). When plaintiffs are afforded every reasonable
inference of fact, their evidence gives rise to a prima facie
showing of harm.
Plaintiffs’ showing meets the requirements of Moriarty for
several reasons. First, it was not merely a separation or
divorce that prompted the family dispute in this case but the
death of the child’s father. In Moriarty, supra, this Court
recognized the significance of the death of the mother,
crediting the trial court’s finding that the children’s bond
with their mother’s side of the family was critically important
to their security and self-esteem in the wake of their loss.
177 N.J. at 121. The same concerns are raised by the record
here. Plaintiffs demonstrated that their granddaughter enjoyed
a close relationship with her father, who shared custody with
the girl’s mother, and contended that his death caused a major
32
trauma in the child’s life. Plaintiffs represented that they
are the only relatives on their side of the family with whom
their grandchild has a relationship. While a parent’s death,
without more, does not automatically give rise to a prima facie
showing of harm, it is an important factor in this setting.
Second, plaintiffs presented evidence that they had
maintained a close bond with their granddaughter prior to her
father’s death, and assumed significant responsibility for her
care during her father’s parenting time. Plaintiff Suzanne
Major, the child’s grandmother, testified that she visited the
child every weekend when the child was staying at her father’s
home, hosted her granddaughter at her own home about once a
month, attended dance recitals, traveled with the child, and
annually brought the child to work for a special event. She
stated that after the child’s father became ill, she lived part-
time with her son and her granddaughter and cared for the child,
and then later assumed the burden of full-time care for her son.
The recent death of this child’s father, in concert with
plaintiff’s allegation that the child was deprived of the
consistent presence of her grandmother, gave rise to a prima
facie showing of harm.
Although plaintiff Anthony Major offered less compelling
evidence than did his co-plaintiff, he nonetheless presented
sufficient evidence to meet his prima facie burden. He
33
testified that between his son’s separation from defendant and
his son’s death, he saw his granddaughter about every other
week, then more frequently after he purchased his boat.
Plaintiff also testified that during his son’s final illness, he
was present in the home with his former wife, his son, and his
granddaughter several days a week. He met his burden to make a
prima facie showing of harm under N.J.S.A. 9:2-7.1 and Moriarty,
supra, 177 N.J. at 117, at the pleading stage.
As did the Appellate Division, we disagree with the trial
court’s ruling that grandparents may not threaten or institute
litigation before visitation has been denied with finality.
Although all parties should make efforts to resolve grandparent
visitation issues without resorting to litigation, no such
threshold requirement is imposed by N.J.S.A. 9:2-7.1 or the case
law. Indeed, in Moriarty, supra, this Court held that if there
is a finding “that the potential for harm has been shown,” the
“same standard” governs cases in which the parent bars
visitation entirely and cases in which the parent offers a
schedule that the grandparent challenges as inadequate. 177
N.J. at 117-18. In both instances, if the grandparent proves
that visitation is necessary to prevent harm, the court applies
the factors in N.J.S.A. 9:2-7.1 to determine whether the
schedule proposed by the parents promotes the child’s best
34
interests. Ibid. The trial court’s rejection of plaintiffs’
complaint as premature was improper.4
Accordingly, on remand, the trial court should permit this
matter to proceed beyond the pleading stage. Managing this case
as a “complex” matter for purposes of Rule 5:5-7(c), the trial
court should assess the need for fact discovery, expert
testimony, and motion practice in accordance with R.K. and
should encourage the parties to pursue mediation or arbitration
of their dispute. In a dispositive motion, or at trial
following discovery if no motion is granted, the court should
determine whether plaintiffs have met their burden to prove that
in the absence of visitation, their granddaughter will suffer
harm. See Moriarty, supra, 177 N.J. at 117. If either
plaintiff meets the burden of proof, defendant must offer a
visitation schedule to that plaintiff, and, if the parties
cannot agree, the trial court should compel visitation that it
considers to be in the best interests of the child. Id. at 117-
18. If plaintiffs fail to meet that burden, their action should
4 We do not share the Appellate Division’s view that the trial
judge improperly injected his personal views when he admonished
plaintiffs that they should have pursued non-adversarial means
of resolving the controversy before filing suit. It is clear
from the record that the trial court relied in that regard on
the Appellate Division’s decision in Wilde, supra, 341 N.J.
Super. at 398, and was not expressing a personal opinion.
35
be dismissed. See Rente, supra, 390 N.J. Super. at 494 (citing
Moriarty, supra, 177 N.J. at 117).
V.
The judgment of the Appellate Division is affirmed as
modified.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA and SOLOMON; and
JUDGE CUFF (temporarily assigned) join in JUSTICE PATTERSON’S
opinion. JUSTICES ALBIN and FERNANDEZ-VINA did not participate.
36
SUPREME COURT OF NEW JERSEY
NO. A-110 SEPTEMBER TERM 2013
ON APPEAL FROM Appellate Division, Superior Court
ANTHONY C. MAJOR and
SUZANNE MAJOR,
Plaintiffs-Respondents,
v.
JULIE MAGUIRE n/k/a
JULIE DI LIBERTO,
Defendant-Appellant.
DECIDED January 12, 2016
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY
AFFIRM AS
CHECKLIST MODIFIED/
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN --------------------
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA --------------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 5