In Anthony C. Major v. Julie Maguire, decided by the New Jersey Supreme Court on January 12, 2016, the issue addressed by the Court was 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.

The Court stated that while some grandparent visitation cases may dictate assignment to a complex track requiring discovery, including interrogatories and depositions of parties and potential witnesses, others may be handled as summary actions, without discovery or case management.

In its 5-0 decision, the court affirmed an Appellate Division ruling calling for the trial court to re-examine the case using procedural guidelines set forth in a previous Appellate Division ruling from 2014, R.K. v. D.L.. That decision came after the trial judge in the Major v. McGuire case dismissed the grandparents’ petition on a finding that no prima facie case was made that the child would suffer harm in the absence of visitation with her grandparents. The trial judge had granted the defendant’s motion to dismiss the complaint by the grandparents seeking to visit with their grandchild after denying their request for a brief period of discovery and declining their request to present expert testimony as to the question of harm to the child. The Supreme Court said the trial judge should have denied the motion to dismiss and granted the plaintiffs a chance to satisfy their burden to prove harm.

The Supreme Court noted that family judges have broad discretion to tailor the proceedings but should ensure that the best interests of the child remain paramount.

The Court made it clear that “Any discovery should be carefully circumscribed to prevent or minimize intrusion on the privacy of the child and his or her family. It is the rare case that will require the trial court to embark on a comprehensive inquiry into family history or probe the relationships of warring adults. The court, counsel and parties should be aware that no matter how difficult the circumstances may be, the litigants’ interests are not the primary concern. Instead, the court’s focus, and that of the parties, must be on the welfare of the child.” In addition, when a plaintiff in such a case seeks to present expert testimony to meet his or her burden of proof, trial courts should be sensitive to the impact of involvement of an expert on family resources, protective of the privacy of the child, and mindful of an expert’s potential value to the court and the parties in suggesting a resolution of the dispute.

In this case, the Court decided that the plaintiff-grandparents had made a prima facie case that their granddaughter would be harmed if she is not allowed contact with them. The showing was made as required by Moriarty v. Bradt, a 2003 New Jersey Supreme Court ruling that Grandparent Visitation Statute is subject to strict scrutiny.

This decision recognizes the balance that must be exercised by trial judges hearing grandparents visitation cases between the rights of the grandparents to a relationship with their grandchild by requiring a threshold showing of harm to the child, by a preponderance of the evidence, by preventing the visitation, and the rights of the child’s parents to parental autonomy. It provides guidance to attorneys handling these cases as to how far they can go in terms of pursuing the litigation on behalf of the litigants embroiled in them.

 
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We take cases throughout New Jersey, to include Monmouth, Middlesex, Ocean, Somerset, Burlington, Mercer, Morris, Bergen, Essex and Hudson Counties.

Divorce attorneys Robert E. Goldstein, Esq. and C. Catherine Jannarone, Esq. discuss divorce mediation and why Ben Affleck and Jennifer Garner may have chosen to mediate.

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Divorce Mediation in Middlesex Monmouth Union Ocean County NJ

Divorce law clients of Robert E. Goldstein, Esq. can be assured that they will be treated with diligence, compassion and with knowledge of the law and the consequences unique to their cases. Call (732) 972-1600 today to speak to one of our skilled Divorce & Family Law Attorneys, or Contact Us via our contact form. Located in Manalapan (Monmouth County, NJ), Cranford (Union County, NJ) and Midtown Manhattan (New York, NY)

Manalapan NJ is not the only community we serve, we also provide Divorce Mediation attorney services for all of Monmouth County including but not limited to:

• Divorce Lawyer Mediation Services for Colts Neck NJ
• Divorce Lawyer Mediation Services for Farmingdale NJ
• Divorce Lawyer Mediation Services for Red Bank  NJ

We take Divorce Mediation cases throughout New Jersey, to include Monmouth, Middlesex, Ocean, Somerset, Burlington, Mercer, Morris, Bergen, Essex, Union, and Hudson Counties.

Craft vs Bugbee Monmouth County

 
In Craft vs Bugbee, a couple with two teenaged children negotiated an agreement concerning their parenting time with the children as part of their divorce.(PTA). The agreement allowed the mother to move to California with the children but it provided that New Jersey would retain jurisdiction over all custody and parenting time issues that would arise in the future. The father continued to reside in New Jersey.

In the years since they signed the agreement, the mother filed numerous motions to try to undo this specific provision of the parenting agreement, but the courts always denied her applications.

Two years ago, the mother filed another motion, again arguing that the New Jersey court should decline jurisdiction on the ground that it is an inconvenient forum jurisdiction and that jurisdiction should be moved to California as a more appropriate forum.” Her motion was denied.

This jurisdiction issue, the trial judge said, was “specifically contemplated” when the parties negotiated the agreement. The father’s consent to the mother’s relocation with his sons to the other side of the country was contingent upon the inclusion of this provision. In denying the mother’s motion, the judge used the standards established under New Jersey’s Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), N.J.S.A. 2A:34-71.

Again, in September 2014, the mother made the same motion (she was certainly persistent!). The same judge came stuck to his prior ruling. He expressed concern that if he disregarded the agreement they had made, this may be the beginning of a slippery slope – future divorcing litigants might “merely feign agreement at the outset, with the intention of later returning to court to challenge its validity.”

The New Jersey Appellate Division upheld the Family Part judge’s ruling. The lesson to be learned is that when you make a deal, expect the courts to enforce it, absent a showing that enforcement was not in the childrens’ best interests.

Unified Mental Health Service Provider Privilege Monmouth County

 
The New Jersey Supreme Court has adopted a rule that creates a “unified mental health service provider privilege,” which will reorganize the current patchwork of privileges which offer varying degrees of protection to professionals.

New Jersey Rule of Evidence 534 will go into effect on July 16, 2016, according to a notice to the bar issued by Chief Justice Stuart Rabner on Sept. 15.

The new rule is “intended to modify or replace the different and occasionally inconsistent privileges that currently exist for communications between patients and various mental health service providers,” the notice says.

“The privilege applies to confidential communications between a mental health service provider and a patient during the course of treatment of, or related to, the patient’s mental or emotional health,” the notice says.

The privilege will apply to psychologists, physicians and psychiatrists, marital and family therapists, social workers, alcohol and drug counselors, nurses, professional counselors, psychoanalysts, midwives, physician assistants and pharmacists.

Members of the clergy, who have their own privilege, are not included in the new rule.

The new rule is the product of a process that began in 2010, when the Supreme Court’s Privileges Subcommittee issued a report finding “little apparent justification for treating a patient’s communications with one mental health professional differently from communications with a different mental health professional.”

The panel deemed the “disparate treatment” of different types of professionals “difficult to justify” given the policy goals of encouraging utilization of mental health services and ensuring the patients’ privacy.

Those goals “would seem to apply equally to a communication with a mental health service provider, regardless of his or her professional credentials,” the panel said. It noted that lesser protections for social workers and counselors, as opposed to psychologists and psychiatrists, is likely to adversely impact lower-income patients.

The current scheme also presents challenges to the courts, who must discern one privilege from another, even in situations where a patient has received treatment from multiple providers, such as in a hospital, the panel said.