Grandparents Able to Make a Prima Facie Showing to Keep Seeing their Granddaughter

According to the Grandparent Visitation Statute, N.J.S.A. 9:2-7.1, a grandparent or sibling of a child may file an application to obtain visitation with the child and it is their burden to prove by a preponderance of the evidence that visitation is in the child’s best interest.  In Major v. Maguire, the child’s paternal grandparents filed such an application were able to establish their initial burden of making a prima facie case showing that harm would be caused to their granddaughter if they were unable to see each other.  In this appeal, the Court addresses the procedure for case management when determining grandparent visitation. 

The  granddaughter was born in 2007.  Her parents, Major and Maguire, separated in 2009.  Major, the grandparent’s son, was then diagnosed with cancer and underwent extensive medical treatments.  During this time, the grandparents’ contact with their granddaughter increased as they would visit and take care of her during their son’s treatments as his health declined.  Major died on February 21, 2013.  Thereafter, Maguire only allowed the grandparents to see their granddaughter twice in four months. 

As a result, the grandparents filed an application seeking visitation. At the initial hearing, Maguire argued that the grandparents failed to make a prima facie showing of harm to their granddaughter in the absence of visitation.  The trial court stated that the grandparents’ complaint failed to show necessary harm and, as a result, .  dismissed the complaint.

The grandparents appealed and argued that the trial court erred in dismissing their complaint.  The Appellate Division reversed the trial court’s decision.  They stated that the trial court’s approach was inconsistent with the guidelines set forth in R.K. v. D.L., 434 N.J. Super. 113 (App. Div. 2014).

The grandparents did claim their detailed involvement in their granddaughter’s life from birth and their alienation will cause her harm.  As required by Moriarty v. Brandt, 177 N.J. 84 (2003), the grandparents did establish a prima facie showing of harm to their granddaughter at the pleading stage.  The trial court should have denied Maguire’s motion to dismiss and have given the grandparents the opportunity for expert testimony to satisfy their burden of proving harm.

Maguire then appealed to the New Jersey Supreme Court. The Supreme Court affirmed the Appellate Division and set out specific procedures for addressing procedural issues in grandparent visitation cases.

If you have an issue with grandparent visitation, contact the skilled matrimonial attorneys at Sarno da Costa D’Aniello Maceri LLC.  The attorneys at Sarno da Costa D’Aniello Maceri LLC are experienced in handling cases where the parties share children.  Call us today at (973) 274-5200.