New Jersey’s Highest Court finds prima facie showing of harm to the child at the pleading stage as required by case law, establishes procedure for proceedings under the Grandparent Visitation Statute
January 12, 2016
MORRISTOWN, NEW JERSEY – Townsend, Tomaio, Newmark & Clancy, LLC is one of the largest family and matrimonial law practices in the state of New Jersey. The firm is pleased to announce its success in the New Jersey Supreme Court. This decision paves a path for Grandparent Visitation for its clients. It also clarifies the law in this area in the State of New Jersey. Firm partners Laurie L. Newmark and John E. Clancy led the legal team.
The Supreme Court Decision: Major v. Maguire
In today’s decision (Anthony C. Major v. Julie Maguire (A-110-13) (074345)), the state’s highest Court addresses the procedure for case management. The Court determined whether a grandparent seeking visitation under the Grandparent Visitation Statute has made a prima facie showing of harm to the child. This showing must be sufficient to withstand a motion to dismiss.
Case Background and History of Contact
The plaintiffs’ granddaughter was born in 2007. Her parents separated in December 2009 after the plaintiffs’ son was diagnosed with cancer. Thereafter, the child’s parents had joint legal custody of the child. The history of contact included several key factors:
- Prior to the separation, the plaintiff visited her granddaughter approximately once every two weeks.
- After the separation, she visited the child at her son’s home every weekend.
- She took the child on trips and vacations.
- Contact increased in frequency as her son’s health declined.
- The plaintiff’s husband often cared for the child during his son’s medical treatments.
Following their son’s death on February 21, 2013, the plaintiffs asserted that the defendant permitted them to see their granddaughter only twice in four months. These instances included a brief visit at a skating rink and five minutes after a dance recital.
Initial Trial Court and Appellate Proceedings
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, the defendant’s counsel argued that plaintiffs failed to establish a prima facie showing of harm to the child in the absence of visitation. They 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 testimony. However, it did not allow expert testimony. The trial court ultimately held that the complaint failed to demonstrate a particularized harm. The court also found the complaint premature. There was no showing that the defendant had denied visitation with finality. Consequently, the complaint was dismissed.
The Appellate Division reversed this decision. The Appellate panel concluded that the trial court’s approach was inconsistent with governing statutory and case law. The panel remanded the case to the trial court. The Supreme Court then granted certification.
Final Ruling by the New Jersey Supreme Court
Today, the New Jersey Supreme Court held that plaintiffs established a prima facie showing of harm to the child at the pleading stage. This is required by Moriarty v. Bradt, 177 N.J. 84 (2003). The Court further held that the trial court should have denied the defendant’s motion to dismiss. It should have given plaintiffs the opportunity to satisfy their burden of proving harm.
The Court established procedural guidelines for proceedings under the statute. This clarifies the law in this area and sets the stage for future Grandparent visitation matters.
About the Legal Counsel
The plaintiffs were represented by partners Laurie L. Newmark, Esq. and John E. Clancy, Esq. Their professional credentials include:
- Laurie L. Newmark, Esq.: Certified by the Supreme Court of New Jersey as a Matrimonial Law Attorney. Included in the Super Lawyers list for 2014 and 2015.
- John E. Clancy, Esq.: Included in the Super Lawyers Rising Stars list from 2013-2015.
- Mediation: Both Ms. Newmark and Mr. Clancy are approved family law mediators pursuant to R. 1:40-12.
Firm Overview
Based in Morristown, with offices in Hackensack, Townsend, Tomaio, Newmark & Clancy, L.L.C. is one of the largest family law firms in New Jersey. Each of the Firm’s attorneys focuses exclusively on New Jersey matrimonial and family law. The Firm seeks creative solutions for property division, alimony, child support, and all other areas of New Jersey family law.
*See Firm Website for further information on these accolades.
