Important case for grandparent’s rights

In a recent decision the court has upheld the importance of the role grandparents play in the lives of their grandchildren.  This case also recognizes the vital roles attorneys play in the legal system and the benefit counsel can provide to clients.

FAMILY LAW 20-2-2501 R.K. v. D.L., App. Div. (Fuentes, P.J.A.D.) (55 pp.) Plaintiffs, the maternal grandparents of a 12-year-old girl, filed a verified complaint in the Family Part seeking visitation rights pursuant to our state’s grandparent visitation statute, N.J.S.A. 9:2-7.1. After joinder of issue, but before any discovery, defendant/father moved to dismiss the complaint under Rule 4:6-2(e). Because the court relied on the parties’ supplemental certifications, the motion judge decided the matter as a summary judgment motion under Rule 4:46-2(c). We reverse. The facts alleged by plaintiffs established a prima facie case for relief under N.J.S.A. 9:2-7.1. The court also erred in granting defendant’s motion to dismiss under Rule 4:46-2(c) because there were material issues of fact in dispute. The complexity and magnitude of the allegations also obligated the court to afford plaintiffs the opportunity to conduct discovery in order to gather sufficient evidence to overcome defendant’s presumptively valid objection to grandparent visitation as the child’s father. Although under Rule 5:4-4 and AOC Directive 08-11 grandparent visitation complaints are considered summary actions, the burden of proof imposed on plaintiffs in grandparent visitation cases under Moriarty v. Bradt , 177 N.J. 84, 117 (2003), cert. denied, 540 U.S. 1177 (2004), makes these matters ill-suited for traditional summary action designation. We, thus, hold that a complaint seeking grandparent visitation as the principal form of relief should not be automatically treated by the Family Part as a summary action. After joinder of issue, the vicinage Family Part division manager shall designate the matter as a contested case and refer the case for individualized case management by a Family Part judge selected by the vicinage presiding judge of Family Part. The judge shall review the pleadings and determine whether active case management is needed. We also hold that an attorney-prepared pleading should not have been rejected by the Family Part division manager merely because it did not use the standardized form approved by the AOC for pro se litigants. This approach displays a disrespect for the work-product of professionally trained and highly experienced family law attorneys.

About Sandy Durst

Sandy Durst, Esq., is the founding partner of The Durst Firm where he heads the Family Law Department. Individuals facing a divorce benefit from the combination of legal skill, common sense and compassion that Sandy brings to each and every matter. Each case is given the personalized attention it deserves.
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