R.K. and A.K. v. D.L., Jr.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2338-12T1
R.K. and A.K.,1
APPROVED FOR PUBLICATION
Plaintiffs-Appellants, January 13, 2014
v. APPELLATE DIVISION
D.L., JR.,
Defendant-Respondent.
_______________________________________
Argued December 11, 2013 – Decided January 13, 2014
Before Judges Fuentes, Fasciale and Haas.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FD-02-387-13.
Martin J. Arbus argued the cause for appellants
(Arbus, Maybruch & Goode, LLC, attorneys;
Mr. Arbus and Matthew R. Goode, on the briefs).
Amy F. Gjelsvik argued the cause for respondent
(Daggett, Kraemer & Gjelsvik, attorneys;
Ms. Gjelsvik, on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
1
To protect the identity of the twelve-year-old child, the court
has chosen to use initials for the parties.
Plaintiffs R.K. and A.K. are the maternal grandparents of
twelve-year-old Olga.2 Plaintiffs filed a verified complaint in
the Family Part seeking visitation rights with their
granddaughter pursuant to our State's grandparent visitation
statute, N.J.S.A. 9:2-7.1.
After joinder of issue, but before the parties engaged in
any discovery, the child's father, defendant D.L., Jr., filed a
motion to dismiss the complaint under Rule 4:6-2(e), for failure
to state a claim upon which relief can be granted. The court
granted defendant's motion and dismissed plaintiffs' cause of
action without conducting an evidentiary hearing or affording
counsel for either side the opportunity to present oral
argument. The court based its decision to dismiss this case on
plaintiffs' failure to provide expert testimony. The court
thereafter denied plaintiffs' motion for reconsideration,
although on that occasion it afforded counsel the opportunity to
present oral argument on the matter.
Plaintiffs now appeal arguing the Family Part erred when it
dismissed their complaint before they had the opportunity to
engage in discovery or present evidence in an evidentiary
hearing. Plaintiffs also argue the court misapplied the
2
We have fictionalized the names of the children for ease of
reference.
2 A-2338-12T1
standard applicable for deciding a motion brought under Rule
4:6-2 because the allegation raised in their complaint, together
with the certifications submitted in response to defendant's
motion to dismiss, were sufficient to establish a prima facie
cause of action under N.J.S.A. 9:2-7.1, and raised material
questions of fact that can only be resolved through an
evidentiary hearing.
We agree with plaintiffs' arguments and reverse. The facts
alleged by plaintiffs in their complaint and supplemental
certifications established a prima facie case for relief under
N.J.S.A. 9:2-7.1. Moreover, because the court decided
defendant's Rule 4:6-2(e) motion after it considered factual
allegations made by the parties in certifications outside the
pleadings, it was required to apply the standard governing
summary judgment motions in Rule 4:46-2(c). Roa v. Roa, 200
N.J. 555, 562 (2010). 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.
3 A-2338-12T1
Given the complexity and magnitude of the tragic facts
alleged here, the court also erred by dismissing plaintiffs'
complaint without affording them the opportunity to conduct
discovery in order to gather sufficient evidence to overcome
defendant's presumptively valid objection to grandparent
visitation as Olga's father. Once discovery is completed, the
court may then entertain the filing of dispositive motions, if
warranted by the evidence. If motion practice proves to be an
unsuitable means for resolving this dispute, the court must then
conduct a plenary hearing to assess the credibility of
witnesses' testimony, after they have been subjected to rigorous
cross-examination.
Finally, the court also erred in concluding plaintiffs were
required to present expert testimony to meet their burden of
proof in this case. Grandparents can meet their burden of proof
that regular contact with their grandchild is necessary to avoid
harm to the child without presenting expert testimony. As our
Supreme Court noted in Moriarty v. Bradt, 177 N.J. 84, 117
(2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed.
2d 78 (2004), "[t]he grandparents' evidence can be expert or
factual." 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
4 A-2338-12T1
its most embryonic phase and after denying them the opportunity
to engage in discovery.
We gather the following facts from the pleadings and the
certifications submitted by the parties in support of and in
opposition to plaintiffs' motion for reconsideration.
I
UNDERLYING FACTS
Defendant was twenty-five years old at the time he met
plaintiffs' twenty-one-year-old daughter K.K. Defendant was
introduced to K.K. by her brother, who was also defendant's
roommate at the time. The couple lived together for a period of
time before they eventually married in 2000. They had two
children, Olga born in 2001 and Charles born in 2004.
Plaintiffs acknowledge that their daughter was addicted to
pain medication at the time she married defendant. Plaintiffs
also claim, however, that defendant knew of her addiction before
the wedding and agreed to help her overcome it. K.K. was
originally prescribed this medication to alleviate the pain she
suffered as a result of being seriously injured in a car
accident years earlier. Plaintiffs' younger son was killed in
this same accident. He was a passenger in the car driven by
K.K.
5 A-2338-12T1
According to defendant, K.K.'s drug abuse issues predated
the automobile accident. In his certification submitted in
support of his motion to dismiss plaintiffs' complaint,
defendant averred that in the course of his divorce he "learned
for the first time that [K.K.] started experimenting with drugs
at age 13." Defendant believes the car accident served only to
exacerbate K.K.'s preexisting drug abuse problem because she
abused pain medication as a misguided effort "to self-medicate
against her emotions related to the guilt and loss of her
brother."
The marriage between defendant and K.K. lasted only four
and one-half years. The couple separated in 2004; the court
entered a final judgment of divorce in August 2006. Ostensibly
driven by his concern over K.K.'s addiction, defendant fought
hard to obtain physical custody of the children pendente lite.
However, in August 2005, the matrimonial court awarded K.K.
physical custody of the children, although both parents were
given joint legal custody.
Based on the record before us, it seems clear defendant
still resents plaintiffs for the role they played in the court's
custody decision. In defendant's view, the matrimonial judge
was heavily, if not unduly influenced by plaintiffs' assurances
that they would be available to help their daughter with the
6 A-2338-12T1
care and supervision of the children because she and the
children would reside with plaintiffs in their house in Howell.
As a result, commencing in August 2005, plaintiffs shared
their home with their daughter and grandchildren. This
arrangement continued for six years, until plaintiffs relocated
to Florida in April 2011. From plaintiffs' perspective, the
time they spent with their granddaughter, during the formative
years of this child's life, enabled them to forge a strong,
close, and loving relationship with her. Defendant sees this
arrangement very differently. In his view, plaintiffs merely
meddled in his family's affairs, undermined his parental role
and authority over his two children, and most importantly, in
retrospect, left his infant son in the hands of a drug-addicted,
emotionally unstable woman who proved to be utterly incapable of
keeping him safe.
The animosity between defendant and plaintiffs engendered
by the court's custody decision reached a critical point on
November 14, 2005, the day eighteen-month-old Charles tragically
drowned in a koi pond located in the backyard of plaintiffs'
house in Howell. Plaintiffs described the circumstances
surrounding their grandson's death in paragraphs 25 and 26 of
their verified complaint:
[E]veryone was at home and asleep after
spending the entire night in the emergency
7 A-2338-12T1
room due to a medical issue suffered by
[plaintiff R.K.] during the course of the
evening.[3] The parties awoke in the morning
with the screams of [K.K.] that she could
not find [Charles]. It was later determined
that [Charles] had apparently slipped out of
the house into the backyard and had fallen
into a fish pond and drowned. The fish pond
was only one foot deep. The matter was
thereafter investigated by both the Monmouth
County Prosecutor's Office and Howell Police
Department and both determined this was a
"tragic accident." Everyone was devastated
by the loss of [Charles].
Following the death of [Charles], defendant
served [K.K.] with papers for sole custody
of [Olga]. The same judge that made the
original decision regarding physical custody,
again gave primary custody of [Olga] to
[K.K.] in early December of 2006.
Despite evidence indicating otherwise, defendant still
holds plaintiffs in large part responsible for Charles' death.
The following passage from his certification captures the
essence and depth of defendant's feelings in this regard.
I am a reasonable man and understand in life
accidents happen but my son's death was more
than avoidable had the Plaintiffs simply
fulfilled the responsibility they begged
for. The police report states that
[Charles] had drowned and was under water
for approximately 20 minutes. To me that
3
Defendant claimed in his certification to the trial court that
the medical emergency suffered by R.K. that night was caused by
a chronic alcohol abuse problem. Plaintiff A.K. denied this
allegation in her response certification in support of
plaintiffs' motion for reconsideration. She claimed her husband
suffered an acute case of acid reflux, which initially mimics
the symptoms of cardiac arrest.
8 A-2338-12T1
means [Charles] was out of the house
navigated the stairs, wandered the yard for
an undocumented amount of time until he
happened upon the unfenced koi pond and fell
in. Being only 18-months old, [Charles]
required constant supervision, as do all
toddlers. Knowing that [K.K.] was battling
her drug addiction and my concern for the
children's safety, the [Ks] promised the
Courts to supervise her parenting time.
Where were the [Ks] while [Charles] was
escaping the house, wandering the yard,
drowning in the pond and lifeless for
another 20 minutes?[4]
Following Charles' death, defendant filed a wrongful death
action against plaintiffs alleging negligent supervision as the
ground for liability. According to A.K., she and her husband
agreed to settle the case because their home insurance carrier
assured them that: (1) the settlement did not constitute an
admission of liability on their part: and (2) half of the
settlement proceeds would be paid to their daughter as Charles'
mother.
Simultaneous with the wrongful death action, defendant
filed an emergent application before the Family Part to obtain
physical custody of Olga, alleging his son's death was
indicative of K.K.'s unfitness to parent Olga or be responsible
4
Plaintiffs denied defendant's allegations concerning the
circumstances that led to Charles' death. Specifically, A.K.
submitted a rebuttal certification before the trial court in
which she averred that Charles was only "missing a total of 10-
11 minutes."
9 A-2338-12T1
for her welfare and safety. Defendant also claimed plaintiffs
failed to honor the assurances they made to the matrimonial
court that induced the judge to award physical custody of the
children to their daughter. Despite this tragic event and the
serious nature of defendant's allegations, the Family Part
denied defendant's motion for a change in physical custody and
continued plaintiffs' involvement in Olga's life.
It appears the court's decision to deny defendant custody
of Olga following the death of his son continues to vex
defendant and invoke in him a strong emotional reaction. Once
again we cite to defendant's certification:
For reasons unbeknownst to me, my emergent
request for custody of [Olga] was rejected
and the Judge simply stated he didn't want
to place blame for [Charles'] death at that
time. I simply wanted my right as a father
to protect my daughter from any further harm
and prevent her from suffering the same fate
as her brother. (Emphasis added).
We pause to note that the record before the Family Part, and
later provided to us in this appeal, does not contain any
evidential support for holding plaintiffs responsible for
Charles' tragic death. Yet, eight years after the child's
death, defendant continues to blame plaintiffs for this tragic
accident.
Plaintiffs decided to relocate to Florida in November 2009,
but permitted K.K. to remain living with Olga in their home in
10 A-2338-12T1
Howell. As represented in paragraph 28 of their verified
complaint, plaintiffs kept in daily telephone contact with their
daughter and granddaughter. They also returned to New Jersey in
2010 to spend the Christmas holiday with their entire family,
which included their two other sons and their wives and
children, including five of Olga's maternal cousins. Plaintiffs
returned to Florida on December 31, 2010, and continued to call
Olga and K.K. on a daily basis.
A reasonable person can view the events recounted thus far
as constituting more than a lifetime worth of suffering for both
sides of this family dispute. However, another great and tragic
loss awaited in 2011. As revealed in paragraph 29 of the
verified complaint, in early February 2011, K.K. called her
mother and told her, in an alarmed fashion, that "she felt a pop
in her chest." Although A.K. advised her daughter to see a
doctor or go to a clinic, she never did. Plaintiffs described
what followed this event on paragraph 30 of their verified
complaint.
On March 7, 2011, [A.K.] received a call
from [Olga] that she had come home from
school and found her mother unconscious in
the bedroom. [A.K.] told [Olga] to stay on
the phone and [A.K.] called Howell Police.
She also called their eldest son, [R.K.],
who lived in Marlboro, New Jersey to drive
over to be with [Olga]. The ambulance and
police arrived at the home and [A.K.] spoke
to a female officer to tell her that her son
11 A-2338-12T1
was on the way to be with [Olga].
Plaintiffs were advised that [K.K.] was
breathing but unconscious and they needed to
take [Olga] to the police station unless
their son could get there before the
ambulance left. Plaintiffs' son [R.K.], did
arrive in time and [Olga] was released to
his home in Marlboro. That evening
[defendant] went to [R.K.'s] home and picked
[Olga] up from the home.
K.K. was diagnosed with "a heart valve problem." She was
admitted to two separate hospitals for a period of four weeks.
Her mother A.K. kept in constant telephone contact with her
daughter in New Jersey until she flew from Florida on March 10,
2011. According to plaintiffs, defendant only allowed Olga to
call her mother on the phone two times during her month-long
stay at Robert Wood Johnson Medical Center in New Brunswick. He
did not allow Olga to visit her mother during the entire four-
week period of her hospitalization.
K.K. had heart surgery at Robert Wood Johnson sometime in
the last week of March 2011. Although she seemed to be doing
well approximately a week after her surgery, K.K. died at six
o'clock in the morning on April 2, 2011. Her brother R.K.
notified defendant, who, according to plaintiffs, responded via
a text message "stating he was simply leaving the issue of
[Olga's] attendance at the funeral to [Olga] and that he was not
going to sway her either way." Defendant allegedly followed
12 A-2338-12T1
this initial text message with a second text stating the
following:
[Olga] and I will be coming for the private
viewing. I want her to be encouraged to
only stay a short time. She will not leave
my sight. I don't want her to know any
details other than her mom's heart was sick
and the doctors did everything they could
and lastly, I don't want any discussion
about how she is to call to talk to you in
the future as that is what you and I will
discuss in the days ahead. If she asks simply
say, we will talk and text soon, you and I
will work those details out later. . . .
Despite the curtness of this message, plaintiffs claimed
that when defendant appeared at the funeral "everyone hugged and
plaintiffs told [defendant] they still loved him and he was like
a son to them during the marriage." According to plaintiffs,
Olga ran and hugged her grandmother as soon as she came out of
the car at the funeral and never left her grandmother's side "as
they went to see her mother." A.K. also claimed that when Olga
asked her father when she could see her maternal grandparents,
he told her "that would get sorted out very soon and I'll call
your grandmother to discuss all of that."
Plaintiffs allege that the first time Olga called them
after the funeral was on May 6, 2011. The child spoke with
plaintiffs for approximately twenty minutes while defendant
listened on the extension line. According to plaintiffs, the
conversation ended when defendant "promised that he would do
13 A-2338-12T1
everything to maintain the relationship between [Olga] and
plaintiffs."
Plaintiffs spoke on the phone to Olga again on May 12,
2011, but only for a few minutes. The child allegedly told her
grandmother that her father "was in the bathroom and she would
have to hang up if he comes out." The next call occurred seven
days later on May 19, 2011. Defendant again listened on the
extension line as Olga asked her grandmother when she was coming
to visit her. The child played the flute for her grandparents
over the phone, spoke about her cat who then lived with
plaintiffs in Florida, and she mentioned making new friends in
school.
Defendant permitted Olga to call plaintiffs nine times over
the next thirteen months. Plaintiffs alleged they did not speak
to their granddaughter in June, August, September, and October
2011. The last call the child made was on January 30, 2012.
Plaintiffs attempted to call Olga on a daily basis using
defendant's landline to no avail. Plaintiffs also suspect
defendant had taken Olga's cell phone. Plaintiffs' attempts to
reach the child via email were also fruitless. Their several
emails to defendant asking to discuss the situation in an effort
to reach a mutually agreeable protocol for contacting Olga were
unanswered. Plaintiffs thus claimed they "exhausted all efforts
14 A-2338-12T1
to amicably resolve this matter directly with the defendant
without the cost of litigation."
Defendant sees matters completely differently. He views
the time plaintiffs spent with Olga before her mother's untimely
death as a negative and abusive experience to his daughter's
emotional and physical wellbeing. The following paragraphs from
defendant's certification to the trial court illustrate the
magnitude of the discord:
25. The danger and abuse that [Olga] had to
endure over the past few years took its toll
on every facet of her life, having a
negative impact on her health, safety, and
well-being. [sic]. She was physically and
emotionally suffering on a daily basis. The
Plaintiffs knowingly watched [Olga's] home
life with her mother drastically
deteriorate. The Plaintiffs were the only
ones who knew the true condition of [Olga's]
mother's home and A.K. later admitted to me
on the telephone that she feared for
[Olga's] safety but she still did nothing to
protect [Olga]. As I continued to fight for
[Olga's] safety through the Courts, through
her school, and DYFS,[5] the Plaintiffs
5
"DYFS" stands for Division of Youth and Family Services, now
known as the Division of Child Protection and Permanency.
Plaintiffs strongly dispute any implication that DYFS ever
investigated their late daughter based on any allegations or
suspicions of abuse or neglect of her children. As previously
noted, plaintiffs averred law enforcement authorities
investigated the cause of Charles' death and found no evidence
to conclude it was nothing more than a tragic accident.
Evidence relating to plaintiffs' activities during the time Olga
resided with them needs to be gathered through the process of
discovery. We anticipate that this discovery will also include
evidence showing what concrete action, if any, defendant took to
(continued)
15 A-2338-12T1
continue to watch [Olga's] life deteriorate
to the point where she was wearing dirty
clothes, at times had no food, barely slept,
and had fallen so far behind in school that
her promotion from the fourth grade was
questionable.
. . . .
27. Ultimately, after years of fighting for
[Olga's] safety, it took her mom's death to
bring to light all of the horrors in
[Olga's] life that the Plaintiffs were
knowingly covering up while they continued
to enable their daughter's drug addiction.
28. The time [Olga] has spent with the
Plaintiffs was clearly not the sunshine and
roses they describe in their Complaint.
Their relationship with [Olga] following the
death of her mother has continued to be
detrimental to her. Plaintiffs have
constantly placed a great amount of pressure
on [Olga] to do things. She is told words
like "you must call me or I'll get upset"
and until the last 18 months she had felt
the unnecessary pressure to the point she
would break down in tears. During one
conversation with [A.K.], [Olga] was even
told that she should have called her mom in
the hospital. That caused [Olga's] grieving
process to backslide and caused several
sleepless nights and an extra trip to the
grief counselors.[6]
(continued)
rescue his children from the deplorable and abusive conditions
he described in his certification.
6
In lieu of subjecting the child to additional and possibly even
unnecessary psychological scrutiny, plaintiffs suggested the
trial court order defendant to permit Olga's grief counselor to
opine if preventing her from having any contact with her
maternal grandparents was harmful to her psychological and
emotional wellbeing. Defendant objected to this approach and
(continued)
16 A-2338-12T1
II
PROCEDURAL ANOMALIES
Before we address the substantive basis of the trial
court's ruling, we will review in some detail the procedural
journey plaintiffs' complaint traveled before it was dismissed
on defendant's Rule 4:6-2 motion. Through this review, we have
identified a number of systemic anomalies that inadvertently
inhibited plaintiffs' ability to present their case in a manner
likely to produce a sustainable adjudicative outcome.
As required by Rule 2:6-2(a)(3), plaintiffs' appellate
brief contained a section describing the case's procedural
history. As part of this history, plaintiffs noted that
[o]n or about July 13, 2012, [they]
attempted to file a Complaint for
Grandparent Visitation with the Superior
Court of New Jersey, Chancery Division,,
Family Part . . . [which] was rejected by
the Court because a form complaint was
required. Thereafter, Plaintiffs
resubmitted the required Verified Complaint
form, however, Plaintiffs also attached the
more detailed Complaint setting forth the
factual allegations. The Complaint was
filed on August 7, 2012.
(continued)
refused to release any information or records from her
therapist. The trial judge ultimately denied plaintiffs'
application despite making the lack of expert testimony a
critical part of his decision to dismiss plaintiffs' complaint
without the benefit of an evidentiary hearing.
17 A-2338-12T1
The Family Part's decision to return plaintiffs' attorney-
drafted complaint, and demand that their counsel submit instead
a "check the box" form pleading, was precipitated by systemic
changes in the way cases that fall under the umbrella category
of "non-dissolution" are processed by the Family Part. This sea
change in the processing of non-dissolution cases at the trial
level came about as the organic byproduct of Supreme Court
committees comprised of family law attorneys, Family Part
judges, and dedicated and concerned members of the general
public. Despite their best efforts and inclusive approach, it
appears grandparent visitation cases do not fit squarely into
the revisions that were ultimately adopted to better service the
large majority of cases denoted as "non-dissolution" or "FD
Docket" cases.
On September 2, 2011, Judge Glenn A. Grant, Acting
Administrative Director of the Courts, issued Directive 08-11 to
supplement and revise the procedures for processing non-
dissolution matters in the Family Part.7 The revisions
implemented by Directive 08-11 were approved by the Judicial
7
Directive 08-11 is available to the public on the judiciary's
website. www.judiciary.state.nj.us/directive/2011/dir_08_11.pdf.
(last visited December 17, 2013). Furthermore, administrative
directives have the force of law. S.M. v. K.M, ____ N.J. Super.
_____, _____ (App. Div. 2013) (slip op at n. 2) (citing State v.
Morales, 390 N.J. Super. 470, 472 (App. Div. 2007)).
18 A-2338-12T1
Council8, as originally recommended by the Conferences of Family
Part Presiding Judges and Family Division Managers.
Directive 08-11 provides a state-wide uniform system for
processing cases falling under the general purview of the "non-
dissolution docket," also known as the "FD Docket." As Judge
Grant explained in his memorandum to Assignment Judges, Family
Part Presiding Judges, Trial Court Administrators, and Family
Division Managers:
The Non-Dissolution docket provides relief
to never married parents seeking custody,
parenting time, paternity, child support and
medical support. It also serves couples
seeking certain reliefs, such as financial
support without dissolution of their union.
Additionally, the Non-Dissolution docket
includes non-parent relatives seeking
custody, child support and/or visitation
regarding minor children. Self-represented
litigants comprise the majority of those
filing in the Non-Dissolution docket.
(Emphasis added).
Of particular importance here, Directive 08-11 requires
Family Division intake staff to process all non-dissolution
cases "as summary actions, with additional discovery at the
discretion of the judge." It also requires litigants in non-
8
The Judicial Council is the governing body of the judiciary.
Chaired by and ultimately answerable to the Chief Justice, the
Council consists of the Assignment Judges from all of the
vicinages, the Presiding Judge for Administration of the
Appellate Division, the Administrative Director of the Courts,
and the Chairs of the Conferences of Presiding Judges for the
Civil, Criminal, Family, and General Equity Divisions.
19 A-2338-12T1
dissolution matters to file their initial complaint using
standardized complaint forms approved by the Administrative
Office of the Courts, and incorporated as an appendix item to
Directive 08-11. The directive did not expressly distinguish
between the litigant who files pro se and one who is represented
by counsel, nor did it provide any dispensation or exemption to
cases such as this one, where the pleading was prepared and
filed by an attorney. As Judge Grant noted in his memorandum to
the vicinages, the revisions were predicated on the reality that
"[s]elf-represented litigants comprise the majority of those
filing in the Non-Dissolution docket."
Even a cursory review of the standardized Verified
Complaint form required by Directive 08-11 reveals it is
intended to apply primarily to cases involving disputes between
unmarried individuals seeking child support, court-ordered
custody, and/or parenting time.9 The revisions are intended to
provide these self-represented litigants with a consistent,
9
Although less likely, married individuals may also use the
standardized Verified Complaint form to file an FD docket action
to obtain spousal and child support, and even court-ordered
parenting time. The traditional FM matrimonial action is only
required when the parties seek dissolution of the marriage as
the principal form of relief. In the FM docketed case,
equitable distribution, spousal and child support, custody, and
parenting time are collateral issues arising from the
dissolution of the marriage.
20 A-2338-12T1
statewide means of accessing the Family Part. As better stated
by Judge Grant:
Efficient methods for processing Non-
Dissolution cases are crucial to the
operation of the court and to court
customers seeking relief under this docket
type. Having standardized statewide
practices enables all court customers to
have a clear and consistent understanding
and a defined process for the resolution of
disputes that fall under this docket type.
The only reference to grandparent visitation actions in the
model Verified Complaint is found on page two, under a checkbox
with the subheading: "Establish or Modify Visitation Rights."
This subheading is further divided into three subcategories
described as "Parenting time; Grandparent Time; and Sibling
Time." Each of these subcategories is accompanied by its own
checkbox. After the litigant checks the appropriate box, the
form provides three lines for the presumably pro se litigant to
elaborate on the reasons for the relief requested. The last
page of the model complaint is left blank for the putative
plaintiff to provide any "additional information." Here,
plaintiffs' counsel attached a copy of his initially rejected
complaint, which consisted of fifty individually numbered
paragraphs describing in great detail the factual basis for the
relief requested.
21 A-2338-12T1
The next critical part of the revisions reflected in
Directive 08-11 concerns how the Family Part should process or
manage non-dissolution cases once the complaint has been
accepted for filing. As a general proposition, the directive
reaffirms that all non-dissolution cases should be processed as
summary actions. Although this classification is arguably
mandated by Rule 5:4-4, the directive reemphasizes this aspect
of how this case-type should be managed by Family Part judges.
Rule 5:4-4(a) provides, in relevant part, as follows:
Family Part summary actions shall include
all non-dissolution initial complaints as
well as applications for post-dispositional
relief, applications for post-dispositional
relief under the Prevention of Domestic
Violence Act, and all kinship legal
guardianship actions. Applications for
post-dispositional relief shall replace
motion practice in Family Part summary
actions. The court in its discretion, or
upon application of either party, may expand
discovery, enter an appropriate case
management order, or conduct a plenary
hearing on any matter. (Emphasis added.)
Syllogistically, since grandparent visitation complaints
under N.J.S.A. 9:2-7 are docketed as FD non-dissolution actions,
and since under the expansive language of Rule 5:4-4 "summary
actions shall include all non-dissolution initial complaints,"
by force of logic grandparent visitation suits must be treated
as summary actions. (Emphasis added). Traditionally, summary
22 A-2338-12T1
actions are expedited proceedings governed by Rule 4:67-1. The
summary nature of the action is intended
to accomplish the salutary purpose of
swiftly and effectively disposing of matters
which lend themselves to summary treatment
while at the same time giving the defendant
an opportunity to be heard at the time
plaintiff makes his application on the
question of whether or not summary
disposition is appropriate.
[Washington Commons, LLC v. City of Jersey
City, 416 N.J. Super. 555, 564 (App. Div.
2010), certif. denied, 205 N.J. 318 (2011),
(quoting Pressler & Verniero, Current N.J.
Court Rules, comment 1 on R. 4:67-1
(2014)).]
Summary actions in the Family Part are ordinarily tried
without the benefits of discovery. R. 5:5-1. However, even in
summary actions, the trial court has the discretion to authorize
discovery for good cause shown, Depos v. Depos, 307 N.J. Super.
396, 400 (Ch. Div. 1997); see also R. 5:5-1(d), or to protect a
party's due process rights, H.E.S. v. J.C.S., 175 N.J. 309, 324
(2003). Finally, and particularly relevant here, Rule 5:4-4(a)
expressly empowers the trial court with the discretion to order
discovery on the court's motion, or "upon application of either
party, . . . expand discovery, [or] enter an appropriate case
management order, or conduct a plenary hearing on any matter."
Against this regulatory backdrop, we now hold that a
complaint seeking grandparent visitation as the principal form
23 A-2338-12T1
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 case management, and potentially inhibit
the grandparents' due process rights to prosecute their case in
a manner likely to produce a sustainable adjudicative outcome.
As a matter of sound principles of judicial case management
and consistent with rudimentary notions of due process, a
verified complaint prepared by an attorney, seeking grandparent
visitation as the only form of relief, should not be rejected by
the Family Part as facially deficient for filing, merely because
it was not presented using a standardized form complaint
intended to be used primarily by pro se litigants as a means of
facilitating their access to the court. Stated differently, a
litigant should not be penalized for retaining an experienced
family law attorney to present their case to the court in the
form of a professionally drafted pleading.
As a matter of basic respect to the legal profession, we
must operate under the presumption that a complaint prepared by
an attorney contains a far more comprehensive presentation of
the facts and legal principles involved in a case than a
standardized form document crafted to identify, in a generic
24 A-2338-12T1
fashion, the nature of the family action at issue by having a
pro se litigant put a checkmark in or write a line across the
box next to the subcategory "grandparent visitation." At the
very least, an attorney-drafted pleading should be treated no
differently than one prepared by a pro se litigant.
Unfortunately, what occurred here demonstrates that, at
least at the time and in the vicinage this case was filed,
attorney-prepared complaints were routinely rejected as a matter
of policy. Compounding this problem, a complaint prepared,
filed, and signed by an attorney, who listed the address of his
law office as the place where all communications from the court
should be sent, was rejected by the Family Part through an
automated form-letter sent directly to plaintiffs' home in
Florida.
The form-letter informed plaintiffs that "[e]ffective
September 1, 2011 the Administrative Office of the Courts issued
a Directive which promulgates the revised filing and post-
dispositional procedures for the Non-Dissolution (FD) Docket
type." (Emphasis added). The letter continued by apprising
plaintiffs that their "Non-Dissolution Complaint/Application
(FD) and/or Non-Dissolution Motion/Modification (FD) with
supporting papers have been received but have not been filed
with the Family Division for the reasons(s) identified below."
25 A-2338-12T1
The form-letter then lists six unnumbered checkboxes
identifying categories or grounds for rejection of plaintiffs'
attorney-drafted pleading. Here, three boxes were checked with
an "X." The first directed plaintiffs (not their attorney) to
"resubmit your Application and/or Modification on the revised
forms." It directed plaintiffs to "retrieve" the forms from the
New Jersey Judiciary website; the second checked box informed
plaintiffs that they "had not included the completed
Confidential Litigant Information Sheet," which apparently was
attached to the letter; and the third box apprised plaintiffs
that "Effective September 1, 2011," the vicinage Family Court
would no longer accept motions in FD actions.
The form-letter concluded by notifying plaintiffs that
"[i]n accordance with R. 1:5-6(c) if the corrected paperwork
and/or documents are submitted to the court within ten 10 days
after the date of this notice, original filing date will be
preserved." In this case, the filing date was July 17, 2012.
This approach is inappropriate on several levels. First, a
default robotic rejection of complaints filed in the Family Part
carries an unacceptably high risk of producing the type of
insensitive, arbitrary outcome that occurred in this case.
Second, the document used convoluted, needlessly bureaucratic
language that served only to undermine the "customer
26 A-2338-12T1
friendly/greater access to the court" policy that was the
foundation for the revisions to Directive 08-11. This can only
frustrate the litigant who receives this letter and increase the
level of alienation and distrust litigants feel about our court
system. This "tail wagging the dog" outcome cannot stand.
From the perspective of the bar, this approach displays a
disrespect for the work-product of professionally trained and
highly experienced family law attorneys. A professionally
prepared complaint is likely to identify with particularity the
salient factual and legal issues of the case, enabling the judge
to triage each case based on their level of complexity, and
distinguish those cases that need active case management from
those who may benefit from early judicial intervention. This
process is also far more likely to lead to possible amicable
settlements. A policy that automatically rejects attorney-
drafted pleadings ironically makes sound judicial management of
these kinds of cases harder.
In Moriarty, the Court upheld the constitutionality of our
State's grandparent visitation law based on the principle that
"interference with parental autonomy will be tolerated only to
avoid harm to the health or welfare of a child." Moriarty,
supra, 177 N.J. at 115. In reaching this conclusion, the Court
specifically rejected the best interest of the child standard as
27 A-2338-12T1
a basis to overcome the objections to grandparent visitation by
a fit custodial parent. Id. at 116.
Writing for the Court in Moriarty, Justice Long emphasized
that a dispute between a fit custodial
parent and the child's grandparent is not a
contest between equals.
. . . .
Thus, in 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 can be expert or factual. For
example, they may rely on the death of a
parent or the breakup of the child's home
through divorce or separation. In fact,
many of the fifty grandparent visitation
statutes specifically recognize the
potential for harm when a parent has died or
a family breakup has occurred and visitation
is denied. 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. . . . The possibilities are
as varied as the factual scenarios
presented.
[Id. at 116-117. (Emphasis added).]
Plaintiffs' cause of action is predicated on tracking the
Court's analysis in Moriarty and thereafter establishing: (1)
the existence of a close and prolonged relationship between Olga
and plaintiffs during the child's formative years; (2) the
animosity and hostility harbored by defendant against plaintiffs
28 A-2338-12T1
in connection with Charles' death; (3) the death of Olga's
mother quickly followed by the restriction and ultimate
termination by defendant of all contact between Olga and
plaintiffs; and (4) the emotional and psychological harm to Olga
if defendant is permitted to deny the child all contact from her
mother's side of the family, especially plaintiffs.
Defendant stated in his certification to the trial court
that he considers the prospect of plaintiffs remaining in
contact with Olga to be not only against his daughter's best
interest, but highly dangerous to her psychological wellbeing.
The only way for plaintiffs to rebut defendant's presumptively
valid objections, is to provide factual testimonial evidence
describing their past interactions with the child. Plaintiffs
may also decide to present expert testimony as well, especially
as it relates to how the child's ability to cope with the death
of her mother may be undermined by defendant's decision to
exclude plaintiffs from her life.
Although Justice Long in Moriarty referred to "the death of
a parent or the breakup of the child's home through divorce or
separation" as scenarios in which prohibiting grandparent
visitation may be harmful to a child, we reject the notion that
these abstract references can be reduced to self-contained,
watertight categories of harm, made available to a would be
29 A-2338-12T1
plaintiff merely by placing a checkmark in a standardized
Verified Complaint form. The dynamics of human interactions are
too complex, the court's parens patriae responsibilities too
great, plaintiffs' statutory rights too precious, and
defendant's constitutional rights as a parent too important, to
reduce the trial judge's function to performing a prosaic,
perfunctory exercise.
Thus, as previously noted, notwithstanding its FD docket
designation as a non-dissolution case, when a litigant brings an
action seeking grandparent visitation under N.J.S.A. 9:2-7.1,
either using the standardized complaint form approved under
Directive 08-11 or through an attorney-prepared pleading, 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. The judge
shall review the pleadings and determine whether active case
management is needed.
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
30 A-2338-12T1
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 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.
31 A-2338-12T1
This list is by no means exhaustive of the myriad of
potential case management issues that may arise in any given
case. The need and degree of judicial supervision is left
entirely to the discretion of the trial judge. As a practical
matter, the court may direct plaintiff's counsel to prepare a
draft case management order for the court's review. If
plaintiff is appearing pro se, the court, or in the court's
discretion, defense counsel, if available, shall prepare a case
management order that reflects the outcome of the matters,
issues, and decisions discussed and decided at the case
management conference.
Although we are satisfied that the burden of proof imposed
on plaintiffs in grandparent visitation cases makes these
matters ill-suited for traditional summary action designation,
the trial court should nevertheless manage these cases with a
sense of urgency and be especially mindful that the nature of
litigation is per se extremely stressful as well as economically
disruptive. Family-related disputes are even more stressful and
emotionally debilitating than other types of civil disputes
because they often touch the very core of our most intimate
experiences, force us to confront our most difficult moments,
and require us to reveal the most private details of our lives.
As this case shows, grandparent visitation disputes also compel
32 A-2338-12T1
those involved to relive painful memories, with the hope that
those of us entrusted with the awesome power to decide their
fate and the fate of their beloved and vulnerable children will
do so fairly, expeditiously, compassionately, and most
importantly, according to law.
III
TRIAL COURT'S RULING
The first communication plaintiffs received from the court
after joinder of issue was a notice, again sent directly to
plaintiffs at their residence in Florida, summoning them to a
"visitation rights hearing." The generic nature of the notice
identified plaintiffs' cause of action as a "Parenting Time/
Visitation Rights Counsel Fees" complaint. The notice directed
plaintiffs to appear before the trial judge on September 26,
2012 at 9:30 a.m. and bring "a copy of this notice" with them.
Despite their counsel's prior appearance in the case, plaintiffs
were also told that they "may bring an attorney with you,
although the attorney is not required."
Plaintiffs' counsel wrote a letter to the judge named in
the notice requesting an adjournment of the September 26, 2012
hearing because the date conflicted with his religious
observance. Counsel also requested that the court make the
rescheduled hearing date "firm," because plaintiffs resided in
33 A-2338-12T1
Florida and it would be a hardship for them to travel to New
Jersey only to discover that the hearing had been adjourned at
the last minute.
By letter dated September 13, 2012, the trial judge granted
plaintiffs' counsel adjournment request, rescheduling the
hearing to October 10, 2012, at 1:30 p.m.10 The court also
directed that defendant file "an Answer or any other form of
responsive pleading by September 24, 2012. All parties should
submit a pretrial memorandum to the court by October 1, 2012. A
copy of the pretrial memorandum is to be served on all other
parties in the case."
As documented in a certification plaintiffs' counsel
submitted to the trial court in support of plaintiffs' motion
for reconsideration, and as counsel emphasized to us at oral
argument in this appeal, upon receipt of the trial court's
letter, he called the judge directly
asking what the purpose of the pre-trial
memorandum was and what type of hearing was
going to be conducted on October 10, 2012.
Counsel was again advised that the matter
would proceed to a hearing on that date and
once again advised that Plaintiffs could
either appear in person or their testimony
would be taken over the phone. At no time
was it indicated, by anyone from the court,
that this initial scheduled matter was a
10
In a notice dated September 14, 2012, the Family Division
Manager confirmed that the hearing had been rescheduled.
34 A-2338-12T1
pre-trial conference or a case management
conference.[11]
As directed by the trial court, defendant filed his answer
to plaintiffs' complaint through counsel on September 24, 2012.
On that same day defendant also filed a motion to dismiss under
Rule 4:6-2, sought an award of counsel fees, and despite the
fact that this was not a probate matter, requested an accounting
of the Estate of K.K. Plaintiffs' counsel filed responding
certifications and a legal memorandum.
The parties and their respective attorneys appeared before
the court on October 10, 2012. According to plaintiffs'
counsel, this was the first time the trial judge advised the
parties that the matter was scheduled as "a Case Management
Conference." Neither party filed the pretrial memoranda
required under Rule 4:25-1. According to the certification
submitted by plaintiffs' counsel as part of the appellate
record,
the parties discussed resolution of the
matter which did not appear possible. I
also asked that the court order that the
granddaughter be examined by a court
appointed psychologist so that a
determination could be made as to the impact
11
In his certification to the trial court, plaintiffs' counsel
acknowledged that the trial judge's clerk told him when he
telephoned the court that he should file "a pre-trial memo
pursuant to R. 4:25." Rule 4:25-1 sets out the procedures
governing pretrial conferences in the Civil Division.
35 A-2338-12T1
of terminating all visitation and contact
with the grandparents who helped raise her.
Defendant objected and the court indicated
it would not order that, at this time.
Because the court did not have the papers to
rule on the Motion [to dismiss filed by
defendant] it was suggested that we schedule
the matter for a hearing date and the
parties agreed on the date of November 14,
2012. The court further indicated it would
rule on the papers on the Motion and than
[sic] we would have a hearing. In that
conversation I asked the court if an expert
was needed, since the expert would not have
met or spoken to [Olga.] Also, the expert
would not have any records to review. The
response was that if was a decision I would
have to make prior to the hearing.
When we left that conference it was rather
clear to me that the court was simply going
to review and deny the Motion and that the
parties would appear in court on November
14, 2012. Instead, the court entered its
Order dated October 17, 2012 granting the
Motion to Dismiss Plaintiffs' Complaint and
supported that decision by a two page
Opinion that was attached to the Order.
By letter dated October 17, 2012, the trial judge
transmitted his order and memorandum of opinion dismissing
plaintiffs' complaint based on defendant's Rule 4:6-2 motion.
Despite the numerous and extensive material issues of fact in
dispute we have described at length here, the trial judge began
his analysis by finding that "[t]he facts are not in dispute."
The judge appears to have based this conclusion by focusing on
three specific events: (1) the death of the child's mother in
36 A-2338-12T1
April 2011; (2) the lack of personal contact between the child
and plaintiffs since the mother's funeral; and (3) defendant's
decision to prohibit telephone contacts between the child and
plaintiffs commencing in January 2012.
After citing the standard for relief established by our
Supreme Court in Moriarty and noting the holdings in three
published opinions from this court that have addressed
grandparent visitation actions arising from a variety of factual
settings, the motion judge found that "plaintiffs' pleadings and
proofs establish no more than a general, unsubstantiated
allegation of harm." Based on a truncated recitation of the
material facts, and noting plaintiffs' failure to produce expert
testimony to substantiate or bolster their claims of harm to
Olga, the motion judge believed himself "obligated to dismiss
the Complaint filed by the plaintiffs." The court also denied
plaintiffs' motion for reconsideration.
IV
SUBSTANTIVE ANALYSIS
Because the trial court dismissed plaintiffs' complaint as
a matter of law, our review of the court's decision is de novo.
Smerling v. Harrah's Entm't Inc., 389 N.J. Super. 181, 186 (App.
Div. 2006). Furthermore, "[a] trial court's interpretation of
the law and the legal consequences that flow from established
37 A-2338-12T1
facts are not entitled to any special deference." Manalapan
Realty, L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378
(1995).
Since at least 2000, every state in the Union has given
grandparents the statutory right to have contact with their
grandchildren. Troxel v. Granville, 530 U.S. 57, 73-74 n. 1 120
S. Ct. 2054, 2064 n. 1 147 L. Ed. 2d 49, 61 n. 1 (2000). Our
own Supreme Court has acknowledged that the importance of the
grandparent-grandchild relationship has been "confirmed" by
psychiatrists and social scientists that have studied the field.
The emotional attachments between
grandparents and grandchildren have been
described as unique in that the relationship
is exempt from the psycho-emotional
intensity and responsibility that exists in
parent/child relationships. The love,
nurturance, and acceptance which
grandchildren have found in the
grandparent/grandchild relationship confers
a natural form of social immunity on
children that they cannot get from any other
person or institution.
[Moriarty, supra, 177 N.J. at 97 (internal
citations and quotation marks omitted).]
The Legislature in our State has codified the rights of
grandparents to have contacts with their grandchildren under the
following provisions:
38 A-2338-12T1
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.
c. With regard to any application made
pursuant to this section, it shall be prima
39 A-2338-12T1
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.
[N.J.S.A. 9:2-7.1.12]
Last amended in 1993, the factors outlined in N.J.S.A. 9:2-
7.1(b) were intended to provide a mechanism for resolving the
tension between a parent's constitutional right to autonomy over
his or her child and the State's implicit public policy of
fostering and encouraging contacts between grandparents and
their grandchildren. In re Adoption of a Child by W.P. & M.P.,
163 N.J. 158, 165-66 (2000). To accomplish this Legislative
goal, when grandparents file a complaint seeking contacts with
their grandchildren under the statute, the trial court must
conduct a fact-sensitive inquiry addressing the seven
particularized factors in N.J.S.A. 9:2-7.1(b)(1) to -(7), as
12
On September 27, 2012, General Assembly Bill A3297 was
introduced to repeal N.J.S.A. 9:2-7.1. A3297 was referred to
the General Assembly Judiciary Committee, which did not take any
action on this Bill before the end of the legislative session.
On June 20, 2013, the State Senate passed S2975, a Bill to
codify the Supreme Court's holding in Moriarty, supra, 177 N.J.
at 117, and establish a series of statutory factors for the
trial court to consider in determining whether grandparent
visitation is in the best interest of the child. S2975 was
formally received by the General Assembly on June 20, 2013, and
referred to the General Assembly Judiciary Committee for
consideration as General Assembly Bill A2945. On November 25,
2013, the General Assembly Judiciary Committee reported out
A2945 as amended and recommended its passage. The General
Assembly did not vote on A2945 before the end of this
legislative session.
40 A-2338-12T1
well as the "any other factor" failsafe category in N.J.S.A.
9:2-7.1(b)(8). Moriarty, supra, 177 N.J. at 100.
In going about this analysis, the trial judge must keep in
mind Justice Long's admonition in Moriarty:
Because the Grandparent Visitation Statute
is an incursion on a fundamental right (the
right to parental autonomy), under [Watkins
v. Nelson, 163 N.J. 235 (2000)], it is
subject to strict scrutiny and must be
narrowly tailored to advance a compelling
state interest. Our prior jurisprudence
establishes clearly that 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
is the avoidance of harm to the child. When
no harm threatens a child's welfare, the
State lacks a sufficiently compelling
justification for the infringement on the
fundamental right of parents to raise their
children as they see fit. However, when
harm is proved and the presumption in favor
of a fit parent's decision making is
overcome, the court must decide the issue of
an appropriate visitation schedule based on
the child's best interests.
[Id. at 114-115. (Emphasis added).]
Thus, the trial judge must first conduct a fact-sensitive
analysis 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. Once a prima facie case
has been established, the court must then determine whether the
grandparents have proven, by a preponderance of the evidence,
41 A-2338-12T1
that visitation is necessary to avoid harm to the child. Id. at
117. Although noted earlier, it is worth emphasizing that the
grandparents can meet this burden by presenting either factual
or expert testimony. Ibid. 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."
Ibid.
With this analytical paradigm in mind, we turn to the trial
court's decision in this case. We are compelled to reverse the
trial court's decision because it did not apply the statutory
factors in N.J.S.A. 9:2-7.1, nor conduct the fact-sensitive
analysis mandated by the Court in Moriarty. As the procedural
history shows, plaintiffs' cause of action fell prey from its
inception to a systemic approach that placed the case on the
conveyor-belt of "pro se non-dissolution summary actions." Once
so designated, the system inexorably channeled the case to the
designated judge, who likewise summarily disposed of the case
despite plaintiffs' counsel's best efforts to convince the court
of the need to conduct the kind of fact-sensitive analysis the
Supreme Court mandated in Moriarty.
In the interest of clarity, we will briefly discuss and
distinguish the cases relied on by the trial court. In Daniels
v. Daniels, 381 N.J. Super. 286, 288 (App. Div. 2005), the
42 A-2338-12T1
grandmother sought visitation under N.J.S.A. 9:2-7.1, alleging
she had a strong and loving relationship with her minor
grandchildren. In sharp contrast to the key facts confronted by
the trial court here, the trial court in Daniels granted the
defendants' motion to dismiss because the parents of the
children "were an 'intact family' and were united in their
opposition to letting the grandmother have visitation with their
children." Ibid.In affirming the trial court, we rejected the plaintiff's
attack on the trial court's holding as constituting a per se bar
of all grandparent visitation actions involving an intact
family. We upheld the trial court's decision because the
plaintiff did not allege facts showing that denial of
grandparent visitation would harm the children. Id. at 292-293.
With respect to the need for discovery, we emphasized that in
both the trial court and at the appellate level the plaintiff
failed "to specify any concrete harm the children are suffering,
or will suffer, by virtue of the lack of visitation." Id. at
293.
Here again the salient facts are far different. Olga not
only had a long and close relationship with her grandparents
during her formative years, but she actually resided with her
grandparents for an extensive period of time after her parents
43 A-2338-12T1
divorced and after the tragic death of her younger sibling.
Olga's association with her grandparents came to an abrupt end
as a result of her mother's death, a traumatic event
specifically used by the Court in Moriarty as an example to
illustrate where the relief requested by plaintiffs may be
warranted.
Rente v. Rente, 390 N.J. Super. 487 (App. Div. 2007), was
another case cited by the trial court here in support of its
decision to dismiss plaintiffs' complaint without a hearing or
discovery. Once again, the facts are inapposite to the ruling
made by the court. The defendant in Rente was the mother of a
four-year-old boy who had obtained a final restraining order
(FRO) against her husband, the boy's father, under the
Prevention of Domestic Violence Act. Id. at 490. Under the
terms of the FRO, the defendant/mother had sole physical custody
of the child and the father was granted supervised parenting
time "on alternative weekends, monitored by plaintiffs
[/paternal grandparents.]" Ibid.
The plaintiff brought an action seeking grandparent
visitation with the boy. Her only claim for such relief was
based on the paternal grandmother's claim that she had babysat
her two-year-old grandson "on occasions" when the
defendant/mother was unable to care for him due to work schedule
44 A-2338-12T1
or illness. The paternal grandmother estimated this occurred
approximately twenty-five times the previous year, and about
four times in the year she filed the complaint for visitation.
Id. at 491.
On these facts, the Family Part conducted a trial in which
the grandmother testified describing the activities she engaged
in with the boy during the times she was babysitting him. The
grandfather’s only claim for visitation was the fact that the
boy was his grandson. Ibid. The defendant disputed the
grandmother's testimony concerning the frequency of the
babysitting sessions. It was undisputed that the plaintiffs had
not seen their two-year-old grandson since the defendant
obtained the FRO against the boy's father. Ibid.
Despite the lack of any evidence showing the child would be
harmed if the plaintiffs were precluded from having any contacts
with him, the trial court granted the relief requested for a
period of one month. The court's decision was based, in large
part, on the defendant's decision to consent to the visitation.
Id. at 492. We noted, however, that the defendant objected to
the scope of the visitation schedule ordered by the trial court.
Ibid. During the time this temporary visitation schedule was
in place, the court appointed a psychologist to perform a
psychological evaluation. Ibid.
45 A-2338-12T1
At the conclusion of the one-month temporary visitation
period, the psychologist recommended that the court continue
grandparent visitation. The psychologist found "both natural
parents have significant adjustment problems that impair their
parenting ability[.]" Ibid. In his opinion, the grandparents
represented the only stable influence in the child's life at
time. Overruling the defendant's objection, the trial court
admitted the psychologist's report into evidence and granted the
plaintiffs unsupervised visitation on alternate weekends. Ibid.
After reviewing the relevant legal principles established
by the Court in Moriarty, we reversed, holding that "[t]he
grandmother's testimony of babysitting for her two-year-old
grandson on occasion failed to establish even a prima facie case
of the requisite harm under Moriarty to rebut the presumption in
favor of parental decision-making that would necessitate a
psychological evaluation and hearing." Id. at 494.
We also concluded the trial court committed reversible
error by admitting the psychologist's report over the
defendant's objection, without offering her an opportunity to
obtain her own expert, providing her with a copy of the report
to review prior to the hearing, and giving her a reasonable
opportunity to depose the psychologist or making him subject to
cross-examination, in violation of Rule 5:3-3. Id. at 495. We
46 A-2338-12T1
also found the information in the expert's report was
insufficient to establish a prima facie case of harm to the
child under Moriarty. Ibid. The psychologist's analysis was
essentially a net opinion not based on any meaningful contacts
with the parties, and applied a "best interest of the child"
standard instead of the relevant "harm to the child" standard
under Moriarty. Ibid.
Thus, Rente reinforces our holding here that, depending on
the circumstances of the case, discovery in grandparent
visitation cases is not only permissible under Moriarty, but
indispensable in reaching a sustainable outcome. Rente is thus
not only procedurally distinguishable from this case, it also
reinforces the need for discovery given the circumstances of the
controversy before the court.
Mizrahi v. Cannon, 375 N.J. Super. 221 (App. Div. 2005),
was the last case relied on by the trial court to support its
decision to dismiss plaintiffs' complaint without a hearing. As
was the case with Daniels and Rente, Mizrahi is both
procedurally distinguishable and factually inapplicable to the
issues we confront here. The plaintiffs in Mizrahi were the
paternal grandparents of a seven-year-old girl who had been
residing with her maternal great-aunt after the death of the
child's mother. Id. at 223. The child's father was estranged
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from her based on his serious emotional, psychological, and
substance abuse problems. Ibid. In fact, the child was three
months old when her father physically assaulted her mother,
causing her to obtain a domestic violence restraining order
against him. Ibid.The record showed that despite this abuse, the plaintiffs
remained loyal to their son. In addition to the conflict
created by this loyalty, there were also tensions about the
child's religion because the mother was a devout Catholic and
the plaintiffs/paternal grandparents were Jewish. Id. at 224.
The child was only two-years-old when her mother was diagnosed
with Stage III cervical cancer. Ibid. The defendants were
given legal and physical custody of the child when her mother
died three years later. Id. at 225.
The plaintiffs testified at trial in support of their
complaint seeking visitation. According to the paternal
grandmother, she saw the child three times the year before her
mother died. There was no testimony that the child showed any
reaction to her grandmother's visits. Ibid. The defendants
testified that the child was reluctant to see the plaintiffs.
Id. at 226. She was fearful and anxious after the visits.
Ibid. After the third visit, the defendants decided to
terminate the visitations in the child's best interest. Ibid.48 A-2338-12T1
The defendants adopted the child three years after her
mother's death. The trial court granted the plaintiffs'
request for visitation. We reversed, noting that despite
acknowledging the standard articulated by the Court in Moriarty,
the trial court applied a "best interest of the child" standard
in awarding visitation rights to the plaintiffs. Id. at 232.
We noted the absence of any
evidence during the trial that [the child]
would experience guilt or inadequacy if
visitation did not occur. Nor was there any
evidence that she could experience confusion
over the fact that she saw her maternal
grandmother . . ., but not [the plaintiffs].
There was no evidence that as [the child]
grew older, she would not be able to learn
about Jewish heritage and tradition. There
was no evidence that [the child] will
experience a void in her life if she does
not visit with [the plaintiffs] or that, as
she got older, she would experience feelings
of rejection. Nor was there any evidence
that [the child] would suffer economically;
there was no showing that [the defendants]
are unable to meet [the child's] needs.
[Id. at 234.]
Here, the trial court misapplied the central thesis of our
holding in Mizrahi by dismissing plaintiffs' complaint at the
early stages of the litigation process. 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. The grandparents in
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Mizrahi were given that opportunity by the trial court. In
short, the trial court here failed to appreciate the procedural
and factual characteristics of Mizrahi, and as a result
incorrectly denied plaintiffs the opportunity to establish a
basis for the relief requested.
With this analysis as a backdrop, we return to Moriarty for
guidance. Distilled to its essence, the Court in Moriarty held
that: (1) in 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; (2) most of the grandparents visitation statutes
adopted throughout the country specifically recognize the
potential for harm when a parent has died or a family breakup
has occurred and visitation is denied; (3) although harm can be
established by either factual testimony from a witness or
opinion testimony by an expert, 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; and
(4) if the trial court finds the grandparents have established
the potential for harm by a preponderance of the evidence, the
presumption in favor of parental decision making will be deemed
overcome. Moriarty, supra, 177 N.J. at 117.
50 A-2338-12T1
Once the presumption in favor of the parent is overcome,
the parent is required to offer the grandparents a reasonable
visitation schedule. Ibid. If the grandparents accept the
visitation schedule offered by the parent, the trial court will
enter an order memorializing the agreement, thus reducing it to
an enforceable judgment. Ibid. If the grandparents are not
satisfied with the proposed visitation schedule, the trial court
must assess the reasonableness of the proposal and thereafter
approve a schedule that it finds is in the child's best
interest, based on the application of the statutory factors in
N.J.S.A. 9:2-7.1. Id. at 117-118.
V
CONCLUSION
We will now apply the legal principles we have discussed to
the facts of this case. As a starting point, pursuant to both
the court’s parens patriae responsibility and the discretionary
authority conferred to it in Rule 5:4-4(a), it is clear to us
that this case falls within the class of complex litigation that
requires the trial court to conduct a case management conference
through which counsel can alert the court of the discovery
necessary to present the matter for trial. The case management
order derived from this conference should therefore describe the
nature and scope of discovery the court has authorized and set
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reasonably attainable deadlines for responding to
interrogatories, producing documents, deposing witnesses, and
submitting expert reports, if any. Any discovery must reflect
and ensure a proper balance between plaintiffs' right to gather
evidence in support of their application, defendant's right to
parental autonomy, and the child's welfare, including her right
to privacy.
As previously noted, the common law did not recognize the
right of grandparents to interact with their grandchildren over
the objections of a fit parent. Plaintiffs' cause of action is
therefore entirely grounded on the statutory factors adopted by
the Legislature in N.J.S.A. 9:2-7.1. We are thus particularly
troubled by the trial court's failure to address the factors in
N.J.S.A. 9:2-7.1(b)(1) to -(8). On remand, the court's ultimate
decision must reflect a fact-sensitive analysis addressing all
of the relevant statutory factors in N.J.S.A. 9:2-7.1(b).
Moriarty, supra, 177 N.J. at 100.
However, each case brings to the court its own set of
unique challenges. Here, how the parties interact with each
other and with Olga remains profoundly influenced by events that
preceded the death of the child's mother. Specifically, the
record shows defendant harbors a great resentment against
plaintiffs stemming from the role they played in convincing the
52 A-2338-12T1
matrimonial judge to award K.K. physical custody of the
children. Furthermore, as the wrongful death action he brought
against plaintiffs shows, defendant holds plaintiffs responsible
for the untimely death of his son Charles. Thus on remand, in
deciding whether the denial of grandparent visitation would
cause harm to Olga, the trial court must determine to what
extent defendant's resentment against plaintiffs prejudices his
parental judgment in this case, and how such an emotionally
driven bias may negatively affect Olga's psychological and
emotional wellbeing.
Given Olga's age, the court should also consider whether to
conduct an in camera interview as a means of ascertaining how
this turmoil has affected her thus far, and how the continued
enforcement of this father-driven estrangement from her
grandparents may affect her in the future. Either as an
alternative to a direct interview by the judge, or as an
additional means of protecting the child's best interest, the
court should also consider appointing a guardian ad litem (GAL)
pursuant to Rule 5:8B. Because plaintiffs bear the burden of
rebutting defendant's presumptively valid objections as the
father of this child, it is entirely appropriate that they
should be held responsible to pay the GAL's fees under Rule
5:8B(d) as part of the cost of the proceedings. See In re
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Adoption of a Child by J.D.S. II, 353 N.J. Super. 378, 403-04,
(App. Div. 2002), certif. denied, 175 N.J. 432 (2003).
We conclude our analysis by noting the remarkable
similarities between the allegations raised by plaintiffs in
this case and the prevailing factual account in Moriarty. As
the Supreme Court's recitation of the Family Part's findings
indicates, the children in Moriarty had a "very extensive
relationship with their grandparents," spending "years where
they were seeing the grandparents every other weekend." Id. at
118. The Court in Moriarty also emphasized that the
relationship between the children and the mother "was
significant in a different way because their mother had recently
died." Id. at 119.
It is undisputed that Olga shared a household with
plaintiffs for a number of years. According to plaintiffs,
their relationship with Olga continued to be a close one even
after they relocated to Florida. Olga's relationship with her
maternal grandparents was also significantly affected by her
mother's untimely death. The Court in Moriarty approvingly
quoted and adopted the trial court's "most critical findings,"
that because of the mother's death, "it is extremely important
that the children continue a bond with their mother's side of
the family." Id. at 121.
54 A-2338-12T1
Although the trial court in Moriarty had the benefit of
expert testimony to support this finding, it was error for the
trial court here to use plaintiffs' failure to present expert
opinion in this regard as a basis to dismiss their complaint.
First, the trial court made its decision here based on
defendant's Rule 4:6-2 motion, as supplemented by conflicting
certifications submitted by both sides of this dispute. The
court was therefore obligated to apply the standards for
deciding a motion for summary judgment under Rule 4:46-2(c).
Under this standard of review, the court was obligated to draw
reasonable inferences from the evidence viewed in the light most
favorable to plaintiffs. Brill, supra, 142 N.J. at 540.
As expressly authorized by the Court in Moriarty,
plaintiffs were entitled to present their case without expert
testimony. Id. at 117. Even if the trial court concluded that
expert testimony was required here, given the procedural infancy
of the case, basic fairness demands that plaintiffs be given the
opportunity to retain such an expert. In short, the dismissal
of plaintiffs' cause of action under these circumstances was
factually unwarranted and legally untenable.
Reversed and remanded. We do not retain jurisdiction.
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