Justia Family Law Opinion Summaries

Plaintiffs-grandparents filed an action under N.J.S.A. 9:2-7.1 in the Family Part, seeking an order compelling defendant-mother to allow them periodic visits with their granddaughter. The trial court determined that in their complaint, supplemented by their testimony, plaintiffs failed to present a prima facie showing that the child would be harmed unless visitation were ordered. It found that plaintiffs had improperly instituted litigation before defendant had denied visitation with finality, and dismissed the complaint. The Appellate Division reversed the trial court's determination and remanded for reevaluation of the sufficiency of plaintiffs' complaint. In this appeal, the issue this case presented for the Supreme Court centered on the procedures by which a Family Part judge determines whether a grandparent has made a prima facie showing of harm to the child sufficient to withstand a motion to dismiss, and manages the case if it continues beyond the pleading stage. The Supreme Court held that in order to overcome the presumption of parental autonomy, grandparents who bring visitation actions must prove by a preponderance of the evidence that denial of his or her application would result in harm to the child. If the grandparent meets that burden, the presumption in favor of parental decision-making is overcome, and the court sets a visitation schedule in the best interests of the child. In this case, plaintiffs alleged in detail their involvement in their granddaughter's life prior to the death of their son (the child's father) and contended on that basis that their alienation from the child caused her harm. The trial court should have denied defendant's motion to dismiss and given plaintiffs the opportunity to satisfy their burden to prove harm. View "Major v. Maguire" on Justia Law

In May 2013, the Division of Child Protection and Permanency filed an Order to Show Cause for Care and Supervision of T.E. (Tommy), the six-year-old son of K.N.(mother) and K.E.(father). The Family Part investigated allegations of domestic violence and drug use in Tommy's home and awarded temporary custody of Tommy to the Division. The Division temporarily placed Tommy in the home of his maternal grandmother, where he had been residing for several months, and conducted an on-site evaluation of the home. A later evaluation revealed that Tommy's maternal step-grandfather had been the subject of a domestic-violence complaint, which was dismissed. The Division substantiated the domestic violence claim and determined that the maternal grandparents home could not be licensed under the Resource Family Parent Licensing Act. As a result, the Division removed Tommy from his maternal grandparents' home and placed him with his maternal great aunt who was eligible to be licensed as a resource family parent and receive financial assistance under the Act. At the permanency hearings that followed Tommy s placement with his maternal great aunt, the Law Guardian argued that Tommy should be returned to the home of his maternal grandparents because Tommy was developing attachment issues and experiencing personality changes. The Division maintained that Tommy could not be returned to the home because the maternal step-grandfather had been the subject of a domestic violence complaint that was substantiated by the Division. At the conclusion of the hearings, the Family Part judge ordered the Division to return Tommy to the home of his maternal grandparents and to provide them with the financial assistance available to a resource family parent licensed under the Act. The Division filed an emergent appeal to stay the Family Part s order. The Appellate Division held that the Family Part had the authority to place Tommy with his maternal grandparents, but remanded the matter for further consideration of all relevant statutory and regulatory factors to determine the suitability of the placement. The Supreme Court affirmed, substantially for the reasons expressed in the Appellate Division opinion, that the Family Part judge had the authority to determine that the child s best interests were served by his continued placement with a relative not licensed as a resource family parent under the Act, and that the Family Part judge did not have the authority to compel the Division to pay financial assistance under the Act to a relative not licensed as a resource family parent. However, because the Division returned Tommy to the care and custody of his mother, the Court dismissed as moot the Appellate Division's remand to the Family Part to consider factors relevant to a placement review, including the claim of prior domestic violence involving the maternal step-grandfather. View "New Jersey Division of Child Protection and Permanency v. K.N." on Justia Law