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Family Law and Divorce Case Law Review--April 14-18, 2014

The following unpublished decision regarding grandparent visitation rights was decided this week:

Major & Major v. Maguire, Appellate Division, April 17, 2014 (Unpublished): In this Appellate Division case, the Court was confronted with an appeal stemming from a trial court's denial of the paternal grandparent's (whose son, the father, is now deceased) request for visitation. The trial court had denied the request, finding that the grandparents had not made a prima facie showing that visitation was necessary to avoid a particularized harm and that visitation has been denied with finality. The Appellate Division reversed the trial court for failure to properly employ the appropriate procedural and substantive approach to grandparent visitation cases brought pursuant to N.J.S.A. 9:2-7.1. Specifically, relying upon the recently published decision of R.K. v. D.L., 434 N.J. Super. 113 (App. Div. 2014), wherein the court provided the following framework for handling grandparent visitation cases: the judge should meet with the parties and their attorneys "as soon 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 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." The court emphasized that this list is by no means exhaustive and the trial judge retains discretion; however, it is necessary to undertake a review of the case before summarily dismissing for a purported inability to present a prima facie case. Further, the court indicated that the question of whether non-adversarial means had been attempted, with such negotiations having resulted in a final determination to deny visitation, is not a prerequisite to bringing a claim.

If you are dealing with similar circumstances, i.e. grandparent visitation rights, please contact an attorney at Miller & Gaudio to review your rights and obligations.

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