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, LLC, one of the largest family and matrimonial law practices in the state of New Jersey, is pleased to announce its success in the New Jersey Supreme Court, paving a path for Grandparent Visitation for its clients and clarifying the law in this area in the State of New Jersey, led by Firm partners Laurie L. Newmark and John E. Clancy.
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 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 separated in December 2009 after the plaintiffs’ son, their grandaughter’s father, was diagnosed with cancer. Thereafter, the child’s parents had joint legal custody of the child. Prior to her son’s separation from defendant, plaintiff 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 her son’s health declined. Plaintiff’s husband also visited the child, and often cared for her while his son was undergoing medical treatment. Following their son’s death on February 21, 2013, plaintiffs asserted that the defendant 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 Appellate 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).
Today, the New Jersey Supreme Court held that 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 Court further held that the trial court should have denied defendant’s motion to dismiss and given plaintiffs the opportunity to satisfy their burden of proving harm. The Court established procedural guidelines for proceedings under the statute, thus clarifying the law in this area and setting the stage for future Grandparent visitation matters.
The plaintiffs were represented by Townsend, Tomaio & Newmark LLC partners Laurie L. Newmark, Esq. and John E. Clancy, Esq. Ms. Newmark is certified by the Supreme Court of New Jersey as a Matrimonial Law Attorney. Ms. Newmark received the honor of being included in the Super Lawyers list published by Thomson Reuters, relative to being a divorce attorney in 2015 and 2014. Prior to that she was included in the Super Lawyers Rising Stars list from 2006 to 2013. From 2013-2015 Mr. Clancy received the honor of being included in the Super Lawyers Rising Stars* list published by Thomson Reuters, relative to being a divorce attorney. Both Ms. Newmark and Mr. Clancy are approved family law mediators pursuant to R. 1:40-12.
Based in Morristown, with offices in Hackensack, Townsend, Tomaio & Newmark, L.L.C., is one of the largest family and matrimonial law firms in the state of New Jersey. Each of the Firm’s attorneys focuses exclusively on New Jersey matrimonial and family law. From property division to alimony to child support and all other areas of New Jersey family law, the Firm seeks creative solutions in order to help their clients avoid costly and emotional conflicts whenever possible.
*See Firm Website for further information on these accolades.