In the recent New Jersey Supreme Court case of Major v. Maguire the Court addressed the procedure for case management and for determining whether a grandparent, seeking an order compelling visitation under the Grandparent Visitation Statute, has made the requisite showing of harm to the child sufficient to withstand a dismissal of the action.
The facts of the case are relatively straightforward. Plaintiffs? granddaughter, the child at the center of the case, was born in 2007. The child?s parents, Anthony C. Major (?Chris?) and defendant Julie Maguire, separated in December 2009 after Major was diagnosed with cancer. Thereafter, they had joint legal custody of their child.
Prior to her son?s separation from defendant, plaintiff-grandmother, 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 as Chris? health declined.
Plaintiff?s husband also visited the child, and often cared for the child while Chris was undergoing medical treatment. Following Chris? death on February 21, 2013, plaintiffs asserted that defendant 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. New Jersey?s Grandparent Visitation Statute confers on a child?s grandparent or sibling the ability to file an action for an order compelling visitation. N.J.S.A. 9:2-7.1 provides:
- 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.
- In making a determination on an application filed pursuant to this section, the court shall consider the following factors:
- The relationship between the child and the applicant;
- The relationship between each of the child’s parents or the person with whom the child is residing and the applicant;
- The time which has elapsed since the child last had contact with the applicant;
- 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;
- If the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;
- The good faith of the applicant in filing the application;
- Any history of physical, emotional or sexual abuse or neglect by the applicant; and
- Any other factor relevant to the best interests of the child.
- 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.
In this case, the Supreme Court found that the Plaintiffs, who commenced their action under the statute, alleged in sufficient detail their involvement in their granddaughter?s life from birth and contended that their alienation from the child would cause her harm. Based on these allegations, the Court found that the plaintiffs established a prima facie showing of harm to the child at the pleading stage, as required by prior case law. The Court held that the trial court should have denied the defendant?s motion to dismiss and should have given the plaintiffs the opportunity to satisfy their burden of proving harm. In its decision, the New Jersey Supreme Court also articulated procedural guidelines for proceedings under the statute.
If you are looking to file an application under the statute, seek an experienced family law attorney for assistance.