Edward R. Weinstein, Esq.

In New Jersey, Grandparents Should Have Their, “Day In Court” When They Seek Visitation With Their Grandchildren.

It is common for divorced or “split-up” parents to have disagreements regarding parenting time rights. However as an experienced New Jersey child custody lawyer, I recently realized (while reviewing some data) that my associate attorneys and I have handled countless cases in which grandparents must also fight to visit their grandchildren. In the recent case of R.K. v. D.L., the New Jersey Appellate Division decided that while a parent also has superior authority in regards to the child, grandparents must be given the opportunity to present evidence that visitation is necessary to avoid harm to the child. Let’s take a closer work.

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D.L., the father in R.K. v. D.L., was twenty-five years old when he met his future wife, K.K., who was twenty-one at the time. He was introduced to her by her brother, who also happened to be D.L.’s roommate. D.L. and K.K. lived together, and eventually married in 2000. Two children were born of their marriage, Olga and Charles. The marriage lasted only four years.

In 2004 the couple separated, and the court entered a final judgement of divorce in August 2006. Concerned over K.K.’s drug addiction, D.L., tried to get physical custody of the children, pendent lite. Pendente lite means “awaiting the litigation” or “pending the litigation”. In divorce a pendente lite order is often used to provide relief while the legal process moves ahead. Regardless, the court still awarded K.K. custody, although both parents were given joint legal custody.

K.K.’s parents admitted that she was addicted to pain killers when she married D.L. According to them, D.L. knew of the addiction and wanted to help her overcome it. They claimed that K.K.’s addiction began when she was prescribed pain medication to alleviate pain from injuries she sustained in car accident. Her younger brother was killed in the accident. K.K. was the driver.

D.L.’s account of events drastically differed from the grandparents. According to D.L., his wife’s drug abuse predated the accident. He stated that, in the course of the divorce he learned that K.K. started using drugs at the age of thirteen. He believed the car accident intensified her existing drug habit.

D.L. also believed the trial judge was heavily and unfairly influenced by the children’s grandparents in the custody decision. The grandparents assured the judge that they would help their daughter to care and supervise the children, and allow them to live at their house in Howell. Starting in August 2005, K.K. and her children lived with her parents for six years, until they moved to Florida in April 2011. According to the grandparents, the time they spent living together allowed them to forge a close, strong, and loving relationship. The father on the other hand claimed that the grandparents undermined his parental authority and left his children in the care of an emotionally unstable drug addict.

Tragedy struck on November 14, 2005 as D.L.’s worst nightmare came true. His eighteen month old child, Charles, drowned in a koi pond located in the grandparent’s backyard in Howell. Even though the entire family was home, Charles somehow slipped out while everyone else was sleeping. Following Charles’ death, D.L. served his ex-wife with papers for the sole custody of Olga. Despite everything that had happened, in December of 2006, the judge again gave primary custody to K.K. It was the same judge who had originally awarded K.K. custody.

Unfortunately, tragedy would continue to haunt this family. On March 7, 2011, Olga came home from school and found her mother unconscious in her bedroom. K.K. was diagnosed with “a heart valve problem.” K.K. had heart surgery at Robert Wood Johnson Medical Center in March 2011. Despite a successful surgery, K.K. died the morning of April 2, 2011, approximately a week after her surgery.

The grandparents alleged that, after their daughter’s death, D.L. allowed Olga to call them nine times over the next thirteen months. All of their attempts to contact Olga through D.L.’s landline and her cell phone and email were not successful. While the grandparents maintained that their relationship with Olga was close and intimate, D.L. testified to the contrary. He categorized the grandparent’s relationship with Olga as negative and abusive to his daughter’s emotional and physical wellbeing. D.L. claimed that the grandparents watched Olga’s life deteriorate and did nothing. At one point Olga was wearing dirty clothes, had no food to eat, barely slept, and was in danger of repeating fourth grade.

R.K and A.K., the maternal grandparents of twelve-year-old Olga, filed a complaint in family court seeking visitation rights with their grandchild. The child’s father filed a motion to dismiss the complaint for failure to state a claim upon which relief granted. The motion was granted, and the grandparents claim was dismissed, according to New Jersey Court Rule 4:6-2(e). An evidentiary hearing was not conducted, nor was oral argument. The basis for dismissal was predicated on the grandparent’s failure to provide expert testimony. The grandparent’s motion for reconsideration was also denied, although they were allowed to perform an oral argument.

The grandparents appealed, and argued that the Family Part made an error when it dismissed their complaint without the opportunity to submit evidence or engage in discovery. They further argued that the court did not properly apply the standard for deciding a Rule 4:6-2, motion to dismiss for failure to state a claim.

The Appellate Division stated that grandparent visitation cases are traditionally treated as summary actions. Summary actions are expedited proceedings. The purpose of summary actions is to swiftly and effectively decide matters. Usually, summary actions in the Family Part are tried without the benefit of discovery. That being said, the trial court still reserves discretion to authorize discovery for good cause, or to protect a parties’ due process rights.

In the case of Moriarty, The New Jersey Supreme Court noted that 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. Preponderance of the evidence is a standard used in most civil and family law courts that is met when something is more than likely to be true. Grandparents can rely on the death of a parent or the breakup of a child’s home through divorce or separation. Many grandparent visitation statutes recognize the potential for harm when a parent has died, and visitation denied. The termination of a long-standing relationship between the grandparents and the child, with expert testimony evaluating the effect of the circumstances, could potentially form the basis for a finding of harm.

The Appellate Division suggested that, in child visitation cases, the judge meet with the parties and determine: the nature of the harm to the child alleged by the grandparents; the likelihood of settlement through mediation; whether pendent lite relief is appropriate; whether discovery is needed; whether expert testimony is required; and a protocol for motions. Furthermore, grandparent visitation cases are stressful and generally bring out painful memories, and should be decided fairly, expeditiously, compassionately, and most importantly, according to the law.

As a matter of law, when a complaint is dismissed by a trial court, the appellate court reviews the decision de novo. De novo review is a form of appeal in which the appeals court holds a trial as if no prior trial had been held. A trial de novo is common on appeals from small claims court judgments.

According to the Appellate Division, depending on the circumstances, discovery in grandparent visitation cases are not only permissible, but sometimes indispensable. Moreover, grandparents looking to overcome a parent’s objection to visitation, must be given the opportunity to gather the evidence necessary to meet the burden of proof. Once the burden has been met, the parent is required to offer the grandparents a reasonable visitation schedule. Once the visitation schedule is accepted the trial court will memorialize it. If the grandparents are not satisfied with the proposed schedule, the trial court will assess the reasonableness of the proposal, and approve one that it finds is in the child’s best interest.

Therefore, the Appellate Division found that the trial court wrongly dismissed the grandparent’s petition for visitation without giving them the opportunity to conduct discovery. Also, the trial court was wrong when it concluded that the grandparents were required to present expert testimony to meet their burden of proof. Case law has established that the grandparent’s evidence can be expert or factual. The judgment was reversed and sent back to the trial court.

If your family is facing a similar sitation, please contact my office today.