Anthony C. Major v. Julie Maguire(074345)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

Anthony C. Major v. Julie Maguire (A-110-13) (074345)

Argued September 17, 2015 – Decided January 12, 2016

PATTERSON, J., writing for a unanimous Court.

In this appeal, the Court addresses 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.

Plaintiffs’ granddaughter was born in 2007. Her parents, Anthony Major and defendant Julie Maguire,
separated in December 2009 after Major was diagnosed with cancer. Thereafter, they had joint legal custody of the
child. Prior to her son’s separation from defendant, plaintiff Suzanne Major visited her granddaughter
approximately once every two weeks; thereafter, she visited the child at her son’s home every weekend, and took
her on trips and vacations. Her contact with the child increased in frequency as Major’s health declined. Plaintiff’s
husband also visited the child, and often cared for her while Major was undergoing medical treatment. Following
Major’s death on February 21, 2013, plaintiffs asserted that Maguire had permitted them to see their granddaughter
only twice in four months, for a brief visit at a skating rink and for five minutes after a dance recital.

Plaintiffs commenced this action for an order compelling visitation under the Grandparent Visitation
Statute, N.J.S.A. 9:2-7.1. At an initial hearing, defendant’s counsel argued that plaintiffs had failed to establish a
prima facie showing of harm to the child in the absence of visitation, and informally moved for dismissal of the
complaint with prejudice. The trial court stated that the complaint failed to make the necessary showing of harm.
The court permitted plaintiffs to supplement the complaint with their testimony, but did not allow expert testimony
on the issue of harm. The evidence that plaintiffs presented expressed their view that their granddaughter would
suffer harm if deprived of a continued relationship with them. The trial court held that the complaint, as amended
by plaintiffs’ testimony, failed to demonstrate a particularized harm to the child in the absence of grandparent
visitation. The court further found the complaint to be premature because there was no showing that the defendant
had denied visitation with finality after efforts to resolve the matter. The court dismissed the complaint.

The Appellate Division reversed. The panel invoked the procedural guidelines set forth in R.K. v. D.L.,
434 N.J. Super. 113 (App. Div. 2014), and concluded that the trial court’s approach was inconsistent with
governing statutory and case law. The panel remanded to the trial court with directions to re-examine the complaint
under R.K. This Court granted certification. 218 N.J. 530 (2015).

HELD: Plaintiffs, who commenced an action under the statute, alleged in detail their involvement in their
granddaughter’s life from birth and contended that their alienation from the child will cause her harm. Based on
these allegations, plaintiffs established a prima facie showing of harm to the child at the pleading stage, as required
by Moriarty v. Bradt, 177 N.J. 84 (2003), cert. denied, 540 U.S. 1177 (2004). The trial court should have denied
defendant’s motion to dismiss and given plaintiffs the opportunity to satisfy their burden of proving harm.
Procedural guidelines are now established for proceedings under the statute.

1. In light of the infringement on the fundamental right to parental autonomy effected by the statute, this Court
recognized in Moriarty that the statute is subject to strict scrutiny, and that the need to avoid harm to the child is the
only state interest warranting grandparent visitation over the wishes of a fit parent. This Court therefore augmented
the statutory best-interests benchmark with a threshold determination of harm, requiring the grandparents to
establish, by a preponderance of the evidence, that visitation is necessary to avoid harm to the child. Absent a
showing of harm, a trial court may not mandate visitation pursuant to the best-interests factors. (pp. 12-20)

2. The Court establishes the following principles for addressing procedural matters in actions under the statute,

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which are patterned after the procedure set forth in R.K., and which require a fact-sensitive analysis:

(a) The limitations imposed in summary actions may deprive a litigant of an opportunity to meet his or her
burden under the statute and case law; however, the case management procedures of R.K. may impose burdens on
the privacy and resources of a family, and are neither necessary nor appropriate in every case. Accordingly, the
approach to case management reflected in Rule 5:5-7(c) strikes the appropriate balance. Case management
conferences and the other proceedings referenced in the Rule are appropriate only in cases that warrant assignment
to the complex track. For such actions, the case management recommendations in R.K. provide a practical template.
Applications that are not complex may be handled as summary actions, with or without case management and
discovery as authorized by Rule 5:4-4(a). (pp. 24-27)

(b) When a party requests that the matter be designated as complex, plaintiff should ordinarily file a non-
conforming complaint, as permitted by Rule 5:4-2(i), to supplement the form pleading required by Directive 08-11.
Plaintiffs will thereby have the opportunity to present a prima facie showing of harm and address the factors stated
in the statute without the constraints of a limited form pleading. A parent opposing visitation should use his or her
responsive pleading to identify issues on which the parties agree and counter the grandparents’ allegations on
disputed issues. Informed by the pleadings, the trial court can make a considered judgment about the complexity of
the matter, the need for fact or expert discovery, and the issues to be resolved. (pp. 27-28)

(c) If fact discovery is required, the court and the parties should coordinate and streamline the process, and
any discovery should be circumscribed to prevent or minimize intrusion on the privacy of the child and the family.
Similarly, when a plaintiff seeks to present expert testimony to meet his or her burden, 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. (pp. 28-
30)

(d) The trial court should not hesitate to dismiss an action without a full trial if the grandparents cannot
sustain their burden to make the required showing of harm. Trial courts should encourage parties to mediate or
arbitrate grandparent visitation actions in accordance with New Jersey’s strong policy in favor of alternative dispute
resolution. (p. 30)

3. Applying these principles, the trial court erred when it dismissed the complaint. Plaintiffs’ pleadings satisfy the
requirements of Moriarty for a prima facie showing of harm to the child because: (1) plaintiffs demonstrated that
their granddaughter enjoyed a close relationship with her father, who shared custody with her mother, and contended
that his death caused a major trauma in her life; and (2) plaintiffs presented evidence that they had maintained a
close bond with their granddaughter prior to her father’s death, and assumed significant responsibility for her care
during her father’s parenting time. The recent death of the child’s father, in concert with plaintiffs’ allegation that
the child was deprived of the consistent presence of her grandmother, gave rise to a prima facie showing of harm.
The frequency and nature of the grandfather’s contacts with the child also satisfied his burden of establishing a
prima facie showing of harm at the pleadings stage. (pp. 31-34)

4. While all parties should make efforts to resolve grandparent visitation issues without resort to litigation, there is
no requirement that visitation be denied with finality before grandparents threaten or institute litigation. The trial
court’s rejection of plaintiffs’ complaint as premature was therefore improper. (pp. 34-35)

5. On remand, the trial court need not re-examine the complaint to determine whether plaintiffs have established a
prima facie showing of harm to the child. The trial court should permit the matter to proceed beyond the pleading
stage, and it should be managed as a complex matter. (pp. 35-36)

The judgment of the Appellate Division is AFFIRMED AS MODIFIED, and the matter is REMANDED
to the trial court.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA and SOLOMON; and JUDGE CUFF
(temporarily assigned) join in JUSTICE PATTERSON’S opinion. JUSTICES ALBIN and FERNANDEZ-
VINA did not participate.

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 SUPREME COURT OF NEW JERSEY
A-110 September Term 2013
074345

ANTHONY C. MAJOR and
SUZANNE MAJOR,

Plaintiffs-Respondents,

v.

JULIE MAGUIRE n/k/a
JULIE DI LIBERTO,

Defendant-Appellant.

Argued September 17, 2015 – Decided January 12, 2016

On certification to the Superior Court,
Appellate Division.

Theresa A. Lyons argued the cause for
appellant (Lyons & Associates, attorneys;
Ms. Lyons and Kristyl M. Berckes, on the
briefs).

Laurie L. Newmark argued the cause for
respondents (Townsend, Tomaio & Newmark,
attorneys; John E. Clancy, on the briefs).

Brian G. Paul argued the cause on behalf of
amicus curiae New Jersey State Bar
Association (Miles S. Winder III, President,
attorney; Paris P. Eliades, of counsel; Mr.
Paul, Mr. Eliades, Jeralyn L. Lawrence, and
Cheryl E. Connors, on the brief).

JUSTICE PATTERSON delivered the opinion of the Court.

In Moriarty v. Bradt, 177 N.J. 84 (2003), cert. denied, 540

U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004), the Court

addressed the standard that grandparents must meet to secure an

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order compelling visitation pursuant to the Grandparent

Visitation Statute, N.J.S.A. 9:2-7.1. The Court reasoned that

because a judicial order compelling grandparent visitation

infringes on parents’ fundamental right to raise their children

as they see fit, N.J.S.A. 9:2-7.1 is subject to strict scrutiny.

Id. at 117-18. The Court determined that the statute could

survive a constitutional challenge only if a “threshold harm

standard” augmented the “best interests of the child” factors

prescribed by the Legislature. Ibid. It ruled that when the

child’s parent or parents object to the proposed visitation, the

grandparent seeking such visitation must prove by a

preponderance of the evidence that denial of his or her

application would result in harm to the child. Ibid. It

further held that 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. Ibid.

In this appeal, the Court addresses 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. Those issues arose in the context of a

request by plaintiffs Anthony C. Major and Suzanne Major for

visitation with their young granddaughter following the death of

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their son. Defendant Julie Maguire, the child’s mother, allowed

the grandparents only two brief visits with their granddaughter

after their son died.

Plaintiffs filed an action under N.J.S.A. 9:2-7.1 in the

Family Part, seeking an order compelling defendant 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. Relying on its decision addressing

case management issues in grandparent visitation litigation in

R.K. v. D.L., 434 N.J. Super. 113 (App. Div. 2014), the

Appellate Division reversed the trial court’s determination and

remanded for the trial court’s reevaluation of the sufficiency

of plaintiffs’ complaint.

We reaffirm the holding of Moriarty that, in order to

overcome the presumption of parental autonomy in the raising of

children, grandparents who bring visitation actions under

N.J.S.A. 9:2-7.1 must prove by a preponderance of the evidence

that denial of visitation will harm the child. This case,

however, arises not from a court’s findings on a full record,

but the grant of a motion to dismiss under Rule 4:6-2(e) at the

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pleading stage, in which plaintiffs must be afforded every

reasonable inference of fact. Here, plaintiffs alleged in

detail their involvement in their granddaughter’s life prior to

the death of their son 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.

Accordingly, we modify and affirm the judgment of the

Appellate Division and remand to the trial court for further

proceedings.

I.
The child at the center of this case was born in 2007. Her

parents, Anthony C. “Chris” Major and defendant, cohabited

between early 2007 and late 2009. Plaintiff Suzanne Major, the

mother of Chris Major, contends that during the period in which

her son and defendant lived together, she visited her

granddaughter approximately once every two weeks. Plaintiff

Anthony Major, who was divorced from plaintiff Suzanne Major in

1997, is Chris Major’s father. The record does not reveal the

extent to which plaintiff Anthony Major maintained a

relationship with his granddaughter during the first two years

of her life.

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 In August 2009, Chris Major was diagnosed with cancer.

Four months later, he and defendant separated, and he moved from

the residence that he had shared with defendant and their

daughter.

In February 2010, defendant and Chris Major entered into an

agreement regarding the custody of their daughter. Under the

terms of that agreement, the parents had joint legal custody,

and the child spent about half of her time with each parent.

Defendant was designated as the parent of primary residence, and

Chris Major was the parent of alternate residence. Although a

dispute between defendant and Chris Major relating to “parenting

time and extracurricular activities” required court intervention

in late 2011, that dispute was resolved, and the parents entered

into a modified custody agreement that maintained their shared

parenting arrangement.

Plaintiff Suzanne Major contends that, following her son’s

separation from defendant, she frequently spent time with her

granddaughter. She asserted before the trial court that she

visited the child at her son’s home every weekend, that the

child visited her home about once a month, that she attended

dance recitals, and that she brought the child to “take your

child to work day” annually for three consecutive years. She

testified that she, her son, and her granddaughter took annual

trips to Disney World, that they also travelled to Key West,

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Florida, and New York City in 2012, and that her granddaughter

stayed at her vacation home in Maine.

According to his testimony before the trial court,

following his son’s separation from defendant, plaintiff Anthony

Major visited his granddaughter approximately once every two

weeks, often caring for her while her father underwent cancer

treatment. He stated that he purchased a boat in 2011, and that

in the two years that followed, he took his granddaughter on

frequent fishing trips.

According to plaintiffs, in September 2012, Chris Major’s

health declined, and plaintiff Suzanne Major assumed greater

responsibilities in her son’s home. She testified that she took

time off from work to assist her son, stayed at his home for

half of each week, cooked the family meals, picked her

granddaughter up at school two days per week, assisted with

homework, and also played with the child. During the last weeks

of Chris Major’s life, plaintiff Suzanne Major lived with him on

a full-time basis and cared for him. Plaintiffs contend that

during Chris Major’s final illness, plaintiff Anthony Major also

spent time at his son’s home with his granddaughter.

Following the death of plaintiffs’ son on February 21,

2013, the relationship between plaintiffs and defendant was

antagonistic. According to plaintiffs, it was one of Chris

Major’s “last wishes” that his parents bar defendant and her

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family from his funeral. Defendant did not permit her five-

year-old child to attend the funeral without her. Defendant

maintains that plaintiffs attempted to undermine her

relationship with her daughter. According to defendant,

plaintiffs called her disparaging names in the child’s presence,

and on one occasion, plaintiff Suzanne Major closed a door in

defendant’s face in order to speak with her granddaughter

privately, “causing the child fear.”

Testifying before the trial court, plaintiffs stated that

defendant had permitted them to see their granddaughter only

twice in the four months since Chris Major’s death, initially in

a half-hour visit at a skating rink and then in a five-minute

meeting after a dance recital. According to plaintiffs, the

constraints on their contact with their granddaughter prompted

them to file their claim for grandparent visitation under

N.J.S.A. 9:2-7.1.

II.

Plaintiffs commenced this action by filing a uniform

“Verified Complaint” form complaint in the Family Part.1 The

1 Plaintiff’s complaint was filed on a form issued by the
Administrative Office of the Courts pursuant to Directive 08-11,
dated September 2, 2011. Directive 08-11 provided that actions
under the Non-Dissolution docket of the Family Part would be
processed “as summary actions, with additional discovery at the
discretion of the judge.” Among the many categories of actions
encompassed by the Non-Dissolution docket that are subject to
7
trial court promptly scheduled a hearing to consider the request

for visitation. After the trial court granted a brief

adjournment of the hearing, defendant filed an answer and

counterclaim in which she requested that the trial court deny

plaintiffs’ application for visitation and award legal fees to

her.

At the initial hearing, plaintiffs requested a “very brief”

discovery schedule so that they could present expert testimony

and explore mediation, and requested an opportunity to visit

their granddaughter in the interim. Defendant’s counsel advised

the trial court that the child was doing well in school and was

happy at home with her mother, stepfather, and newborn brother.

Defendant’s counsel argued that plaintiffs had failed to present

the mandated prima facie showing of harm to the child, and

informally moved before the trial court for the dismissal of

plaintiffs’ complaint with prejudice.

The trial court advised plaintiffs that they would not be

entitled to discovery in the absence of a prima facie showing

that denial of visitation would impose a particularized,

identified harm on the child and that their complaint had failed

to present such a showing. The court stated, however, that it

Directive 08-11 are “actions by non-parent relatives seeking . .
. visitation with minor children.”

8
would permit plaintiffs to supplement their complaint by

testifying on direct examination, with no cross-examination

allowed.

When the hearing resumed the following day, plaintiffs

sought leave to present the testimony of an expert witness on

the question of harm. The trial court declined that request,

stating that before a parent is compelled to litigate a

grandparent visitation action, the grandparents should

demonstrate that they can meet their threshold burden of proof.

Plaintiffs then testified about their son’s relationship with

defendant, their involvement in their granddaughter’s life

before and during her father’s illness, and their efforts to

maintain contact with the child after their son’s death.

Plaintiffs stated that their granddaughter had no relationship

with any other relatives on her father’s side of her family.

Plaintiffs expressed their view that if their granddaughter

was deprived of a continued relationship with them, she would

suffer harm. Plaintiff Suzanne Major testified that her

granddaughter had not only “lost her daddy, but she’s losing his

family that she has known for almost six years,” and stated her

strong belief “that she needs us in her life and we need her in

our life.” Plaintiff Anthony Major testified that shortly after

the child’s father “was ripped out of her life by a disease,”

9
“we are being ripped out of her life also and no good can come

of that[.]”

The trial court held that the complaint, as amended by

plaintiffs’ testimony, failed on two grounds to satisfy

plaintiffs’ threshold burden. First, the court found that

plaintiffs had not demonstrated a particularized harm to the

child in the absence of grandparent visitation. Second, relying

on the Appellate Division’s decision in Wilde v. Wilde, 341 N.J.

Super. 381, 397 (App. Div. 2001), the trial court stated that

before commencing litigation, grandparents should be required to

make “substantial efforts at repairing the breach” in their

relationship with the child’s parent, and that litigation

ordinarily should not be threatened before the parent has denied

visitation “with finality.” The court dismissed the complaint

without prejudice, and denied plaintiffs’ application for

visitation.

An Appellate Division panel reversed the trial court’s

judgment. The panel invoked the procedural guidelines set forth

in its decision in R.K., supra, 434 N.J. Super. at 137-40.

Although the panel noted that R.K. had not yet been issued when

the trial court ruled, it concluded that the trial court’s

approach was inconsistent with governing statutory and case law,

and remanded so that the trial court could reexamine plaintiffs’

10
complaint in compliance with the Appellate Division’s direction

in R.K..

We granted certification. 218 N.J. 530 (2015).

III.

Defendant urges the Court to overrule the Appellate

Division’s decision in R.K.. She argues that by urging trial

courts to allow discovery and case management in all grandparent

visitation cases, the Appellate Division in R.K. contravened

this Court’s holding in Moriarty. In the alternative, defendant

argues that the case management procedures set forth in R.K. are

burdensome and confusing to courts and litigants and should be

rejected for that reason. She contends that the trial court

properly considered plaintiffs’ failure to attempt mediation as

a ground for dismissal of the complaint.

Plaintiffs counter that the Appellate Division’s decision

in R.K. does not alter the burden imposed by this Court in

Moriarty but provides a thoughtful and careful procedural

approach that safeguards the rights of parents and grandparents.

According to plaintiffs, the Appellate Division properly

clarified in R.K. that summary proceedings are an inappropriate

procedural vehicle for the adjudication of grandparent

visitation disputes and permitted discovery because the parties

disputed the question of harm to the child. They note that in

R.K., the Appellate Division endorsed mediation as a case

11
management device, and represent that defendant refused to

attempt mediation to resolve the parties’ dispute.

Amicus Curiae New Jersey State Bar Association (NJSBA)

urges the Court to reverse the Appellate Division’s judgment and

reinstate the trial court’s judgment dismissing plaintiffs’

complaint without prejudice. NJSBA argues that it would violate

parents’ constitutional rights to implement the case management

and discovery procedures prescribed by the Appellate Division in

R.K., unless the grandparents’ complaint demonstrates an

identifiable harm specific to the child that warrants judicial

intervention. NJSBA advocates a two-step procedure whereby a

trial court initially determines whether the grandparents have

presented prima facie evidence of harm, viewing the facts in the

light favorable to the grandparents, and addresses case

management only after a finding that the mandated prima facie

showing has been made.

IV.

A.

As do its counterparts in our sister states, New Jersey’s

Grandparent Visitation Statute confers on a child’s grandparent

or sibling standing to file an action for an order compelling

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visitation. Originally signed into law in 1972 and twice

amended,2 N.J.S.A. 9:2-7.1 provides:

a. A grandparent or any sibling of a child
residing in this State may make application
before the Superior Court, in accordance with
the Rules of Court, for an order for
visitation. It shall be the burden of the
applicant to prove by a preponderance of the
evidence that the granting of visitation is in
the best interests of the child.

b. In making a determination on an application
filed pursuant to this section, the court
shall consider the following factors:

(1) The relationship between the child and the
applicant;
(2) The relationship between each of the
child’s parents or the person with whom the
child is residing and the applicant;
(3) The time which has elapsed since the child
last had contact with the applicant;
(4) The effect that such visitation will have
on the relationship between the child and the
child’s parents or the person with whom the
child is residing;
(5) If the parents are divorced or separated,
the time sharing arrangement which exists
between the parents with regard to the child;
(6) The good faith of the applicant in filing
the application;
(7) Any history of physical, emotional or
sexual abuse or neglect by the applicant; and
(8) Any other factor relevant to the best
interests of the child.

2As amended a year after its enactment, N.J.S.A. 9:2-7.1
authorized a grandparent to seek visitation only in the event of
the death of one or both parents, or the parents’ separation or
divorce. N.J.S.A. 9:2-7.1 (as amended by L. 1973 c. 100, § 1).
In 1993, the Legislature amended the statute again to its
current form, eliminating the requirement that one or both
parents be deceased, or that the parents be divorced or
separated, in order for a grandparent to bring an action. L.
1993 c. 161, § 1.
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 c. With regard to any application made
pursuant to this section, it shall be prima
facie evidence that visitation is in the
child’s best interest if the applicant had, in
the past, been a full-time caretaker for the
child.

As the Court noted in Moriarty, supra, the “structure [of

N.J.S.A. 9:2-7.1] underscores the fact-sensitive nature of the

inquiry by detailing seven particularized considerations for the

court and instructing the court to consider as well, ‘any other

factor’ relevant to the child’s best interests.” 177 N.J. at

100.

By virtue of its intrusion on parental autonomy, N.J.S.A.

9:2-7.1 implicates due process principles. Federal

jurisprudence, reaffirmed over nearly a century, recognizes that

the Due Process Clause of the Fourteenth Amendment protects the

“right[] . . . to direct the education and upbringing of one’s

children.” Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.

Ct. 2258, 2267, 138 L. Ed. 2d 772, 787 (1997); see also

Wisconsin v. Yoder, 406 U.S. 205, 232-33, 92 S. Ct. 1526, 1541-

42, 32 L. Ed. 2d 15, 35 (1972). In actions based upon state

grandparent visitation statutes, parents have invoked this

constitutional principle. See, e.g., McGarity v. Jerrolds, 429

S.W.3d 562, 566 (Tenn. Ct. App. 2013); Blixt v. Blixt, 774

14
N.E.2d 1052, 1056 (Mass. 2002), cert. denied, 537 U.S. 1189, 123

S. Ct. 1259, 154 L. Ed. 2d 1022 (2003).

In Troxel v. Granville, the United States Supreme Court

sustained a due process challenge to a “breathtakingly broad”

state statute that authorized any person to seek visitation of a

child based solely on a judicial determination that such

visitation was in the child’s best interests. 530 U.S. 57, 66-

68, 120 S. Ct. 2054, 2060-61, 147 L. Ed. 2d 49, 57-58 (2000). A

plurality of the Supreme Court declined to adopt a per se ban on

state statutes allowing nonparent visitation, or to determine a

standard of review for such statutes. Id. at 73-74; 120 S. Ct.

at 2064, 147 L. Ed. 2d at 61-62. Instead, the Supreme Court

generally reaffirmed that by virtue of a fit parent’s

fundamental due process right to raise his or her children, the

parent is entitled to a presumption that he or she acts in the

best interests of the child, and that the parent’s determination

whether to permit visitation is entitled to “special weight.”

Id. at 67-69; 120 S. Ct. at 2062-63, 147 L. Ed. 2d at 57-59.

The Supreme Court held that the parties seeking visitation had

failed to overcome the presumption that the parent’s decisions

were in the child’s best interests. Id. at 69-70, 120 S. Ct. at

2062, 147 L. Ed. 2d at 59.

The Supreme Court’s decision in Troxel, in which the

constitutionally infirm statute required no showing of harm, set

15
the backdrop for this Court’s review of New Jersey’s Grandparent

Visitation Statute in Moriarty. There, the Court considered a

surviving parent’s appeal from a trial court’s order compelling

the parent to cooperate with grandparent visitation after the

death of their daughter, who was the mother of the

grandchildren. Moriarty, supra, 177 N.J. at 92-94. The

defendant parent asserted that in light of Troxel, N.J.S.A. 9:2-

7.1 was unconstitutional and that any order of visitation

entered pursuant to that statute was invalid. Id. at 94-95.

This Court acknowledged that when the Legislature

prescribed a cause of action for grandparent visitation of minor

children in N.J.S.A. 9:2-7.1, it created a statutory remedy

unrecognized at common law. Id. at 95 (citations omitted). It

cited the United States Supreme Court’s case law with respect to

a due process right to parental autonomy, and noted that New

Jersey courts have “recognized unfailingly that deeply embedded

right in our jurisprudence as well.” Id. at 102 (citing Watkins

v. Nelson, 163 N.J. 235, 245 (2000); V.C. v. M.J.B., 163 N.J.

200, 217-18, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L.

Ed. 2d 243 (2000); In re Guardianship of K.H.O., 161 N.J. 337,

346 (1999)); see also Fawzy v. Fawzy, 199 N.J. 456, 473 (2009)

(noting primary role of parents in raising their children is

“established beyond debate as an enduring tradition to which we

have unflinchingly given voice”). In light of N.J.S.A. 9:2-

16
7.1’s infringement on the fundamental right to parental

autonomy, this Court held in Moriarty that the statute is

subject to strict scrutiny and is only constitutional if it is

narrowly tailored to serve a compelling state interest. 177

N.J. at 103 (citing Glucksberg, supra, 521 U.S. at 720-21, 117

S. Ct. at 2268, 138 L. Ed. 2d at 787-88; Roe v. Wade, 410 U.S.

113, 155-56, 93 S. Ct. 705, 728, 35 L. Ed. 2d 147, 178 (1973);

Brown v. City of Newark, 113 N.J. 565, 573 (1989)).

Applying strict scrutiny to N.J.S.A. 9:2-7.1, the Court in

Moriarty concluded that the need to avoid harm to the child is

“the only state interest warranting the invocation of the

State’s parens patriae jurisdiction to overcome the presumption

in favor of a parent’s decision and to force grandparent

visitation over the wishes of a fit parent[.]” Id. at 115. The

Court held that absent a showing that the child would suffer

harm if deprived of contact with his or her grandparents, the

State could not constitutionally infringe on parental autonomy.

Ibid.

The Court, therefore, augmented the statutory best-

interests benchmark with a threshold determination of harm:

[I]n 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. The grandparents’ evidence
may be expert or factual. For example, they
may rely on the death of a parent or the

17
 breakup of the child’s home through divorce or
separation. . . . In addition, the termination
of a long-standing relationship between the
grandparents and the child, with expert
testimony assessing the effect of those
circumstances, could form the basis for a
finding of harm.

[Id. at 117.]

The Court held that when grandparents present a showing of

harm, the presumption in favor of parental decision-making is

overcome. Id. at 117-18. Following such a finding, the parent

is obliged to offer a visitation schedule, and if the

grandparents agree to that schedule, “that will be the end of

the inquiry.” Id. at 117. If the parties are unable to agree

on a visitation schedule, the trial court approves a schedule

“that it finds is in the child’s best interest, based on the

application of the statutory factors.” Ibid. (citing N.J.S.A.

9:2-7.1). Applying that test to the case before it, the Court

held that the trial court had “presaged our opinion by [its]

finding that visitation with the grandparents was necessary to

avoid harm to the children” and reinstated the trial court’s

visitation order. Id. at 122.

In several cases following Moriarty, this Court and the

Appellate Division held that plaintiff grandparents had failed

to make the requisite showing of harm. See New Jersey Div. of

Youth and Family Servs. v. P.W.R., 205 N.J. 17, 38-39 (2011)

(holding in context of abuse and neglect determination pursuant

18
to Title Nine, N.J.S.A. 9:6-8.21 to -8.73, grandfather failed to

show mental or emotional harm to child as a result of

restrictions on grandparent visitation); Rente v. Rente, 390

N.J. Super. 487, 494-95 (App. Div. 2007) (holding that, given

parent’s willingness to allow monthly visits, grandmother failed

to allege facts showing harm to child in absence of weekly

visitation); Daniels v. Daniels, 381 N.J. Super. 286, 288-89

(App. Div. 2005) (affirming denial of grandparents’ application

for visitation in absence of allegation or evidence of harm to

child); Mizrahi v. Cannon, 375 N.J. Super. 221, 223-25, 232

(App. Div. 2005) (reversing grant of grandparent visitation

after trial court addressed best interests test but omitted

inquiry into harm to child). These decisions underscore the

heavy burden on grandparents seeking to satisfy the threshold

requirement of Moriarty.

In short, N.J.S.A. 9:2-7.1 and our case law mandate a

meticulous, fact-specific analysis of each application for

grandparent visitation. As the Appellate Division noted in

R.K., supra, each action “brings to the court its own set of

unique challenges.” 434 N.J. Super. at 151. In the wake of

Moriarty, “potential harm to the child is the constitutional

imperative that allows the State to intervene into the otherwise

private and protected realm of parent-child relations.” Fawzy,

supra, 199 N.J. at 476. Absent a showing that the child will

19
suffer harm if grandparent visitation is denied, a trial court

may not mandate visitation pursuant to the best-interests

factors of N.J.S.A. 9:2-7.1, and should dismiss the complaint.

B.

This Court has not previously addressed in detail discovery

and other procedural issues raised by grandparent visitation

actions under N.J.S.A. 9:2-7.1. Several Appellate Division

panels, however, have considered discovery, expert opinion, and

case management questions in these matters.

In Wilde, supra, an Appellate Division panel reversed the

trial court’s order compelling the parent, who had not entirely

barred visitation, to complete a psychological evaluation and to

undergo “intensive therapy in addition to the supportive therapy

which she is currently receiving.” 341 N.J. Super. at 387, 398-

99. The panel noted that although “there may be circumstances

in which a fit parent is obliged to submit to psychological

treatment in the context of a visitation action,” the

grandparents made no showing that would justify such a remedy in

that case. Id. at 399. In Daniels, supra, another panel

rejected the grandparents’ request for unspecified discovery and

an evidentiary hearing, noting that they had failed to plead

specific facts in support of their claim, and that this Court in

Moriarty did not endorse the imposition of “expensive and time-

consuming discovery and other litigation costs on parents” in

20
every visitation action. 381 N.J. Super. at 292-93. In the

absence of a prima facie showing of harm, the Appellate Division

panel in Rente, supra, held that it was error for the trial

court to compel a psychological review of the parties and to

mandate discovery. 390 N.J. Super. at 493-95.

The Appellate Division’s most comprehensive analysis of

discovery and case management issues in grandparent visitation

litigation was set forth in R.K., supra, 434 N.J. Super. at 137-

39. There, the trial court rejected an attorney-drafted

complaint filed on behalf of grandparents seeking visitation

with their late daughter’s child. Id. at 130. Instead, the

trial court limited the grandparents to a form summary action

complaint and then dismissed the complaint on the ground that

the grandparents failed to make a prima facie showing of harm to

the child. Id. at 130, 141-42.

The Appellate Division reversed that determination,

observing that, given the showing required by Moriarty,

grandparent visitation actions should not be managed as summary

actions. Id. at 135-36. The panel held that all grandparent

visitation cases should be assigned to a particular judge for

individual case management, and that judge should “review the

pleadings and determine whether active case management is

needed.” Id. at 137-38. It recommended that in any such case,

the trial court should “first conduct a fact-sensitive analysis

21
applying the statutory factors in N.J.S.A. 9:2-7.1, to determine

whether the grandparents have presented a prima facie case

warranting the relief requested[,] . . . [and] then determine

whether the grandparents have proven . . . that visitation is

necessary to avoid harm to the child.” Id. at 144-45 (citing

Moriarty, supra, 177 N.J. at 117).

The panel deciding R.K. enumerated a non-exhaustive list of

issues for consideration at an initial case management

conference in a grandparent visitation dispute:

In furtherance of this case-sensitive
approach, we suggest the judge meet with the
parties and counsel, if available, as soon as
practical after joinder of issue, to
determine, on the record: (1) the nature of
the harm to the child alleged by plaintiff;
(2) the possibility of settlement through
mediation or as otherwise provided in Rule
5:5-5; (3) whether pendente lite relief is
warranted; (4) the extent to which any of the
facts related to the statutory factors
identified in N.J.S.A. 9:2-7.1(b)(1) through
(8) can be stipulated by the parties; (5)
whether discovery is necessary, and if so, the
extent and scope of the discovery, as
permitted by Rule 5:5-1(a), written
interrogatories, production of documents,
Rule 4:18-1, request for admissions, and
consent to release documents not within the
possession of the party –- discovery may be
completed within the time allotted in Rule
5:5-1(e), or as otherwise ordered by the
court; (6) whether expert testimony will be
required, and if so, the time for submission
of the expert’s report and curriculum vitae,
the time for submission of defendant’s
rebuttal report if any, and whether deposition
of the expert(s) will be required or
permitted; (7) a protocol for the filing of

22
 motions, including motions to compel
discovery, motions seeking protective orders
to exclude or limit evidence based on an
assertion of privilege, or because the release
of the information would adversely affect the
child’s best interest, or unduly infringe upon
the privacy rights of the custodial parent;
and (8) a tentative date for the filing of
dispositive motions and/or a plenary hearing
if necessary to adjudicate plaintiff’s
complaint and resolve any material facts in
dispute.

[Id. at 138.]

The panel held that the trial court’s dismissal of the

grandparents’ complaint, without holding a case management

conference to gauge the need for discovery, constituted error.

Id. at 151-53. Accordingly, it remanded the case for further

proceedings. Id. at 153.

In amendments effective on September 1, 2015, this Court

adopted three provisions recommended by the Supreme Court Family

Practice Committee following the Appellate Division’s decision

in R.K., supra. Rule 5:4-2(j) permits a party to request, in a

complaint or counterclaim, that his or her case be designated as

“complex.” Rule 5:4-2(i) authorizes the filing of a non-

conforming complaint, to which is appended a completed

supplement as promulgated by the Administrative Director, when a

party seeks to have a non-dissolution matter designated as

“complex” for purposes of Rule 5:5-7(c). Rule 5:5-7(c) permits

a trial court, on the application of a party or on its own

23
initiative, to assign non-dissolution cases that “cannot be

heard in a summary manner” to the complex track, “based only on

a specific finding that discovery, expert evaluations, extended

trial time or another material complexity requires such an

assignment.” Applications for complex track assignment made

after the initial hearing may be considered “upon presentation

of exceptional circumstances.” Ibid.

In cases given the “complex” designation, Rule 5:5-7(c)

requires the trial court to conduct a case management conference

and to review with the parties some of the discovery, expert

opinion, and motion practice issues identified by the Appellate

Division in R.K., supra, 434 N.J. Super. at 138. The Rule

imposes no such requirement for matters that are not deemed

“complex”; such cases are handled as summary actions. See R.

5:5-7(c) (reserving complex track procedures for “exceptional

cases” ill-suited to be managed as summary actions).

C.

In that setting, we consider a procedural framework for the

grandparents’ presentation of a prima facie showing of harm,

when a defendant challenges a grandparent visitation action by

motion to dismiss and for the management of those cases if they

progress beyond the pleading stage.

We recognize that grandparents seeking visitation are

entitled to a meaningful opportunity to make the showing of harm

24
that Moriarty requires and, if that showing is made, a

visitation schedule under the best-interests factors prescribed

by the Legislature in N.J.S.A. 9:2-7.1. 177 N.J. at 117-18. We

are also mindful that the mere pendency of a visitation claim

may impose significant burdens on a family. As Justice Kennedy

observed in his dissent in Troxel, supra,

[i]t must be recognized, of course, that a
domestic relations proceeding in and of itself
can constitute state intervention that is so
disruptive of the parent-child relationship
that the constitutional right of a custodial
parent to make certain basic determinations
for the child’s welfare becomes implicated.
The best interests of the child standard has
at times been criticized as indeterminate,
leading to unpredictable results. . . . If a
single parent who is struggling to raise a
child is faced with visitation demands from a
third party, the attorney’s fees alone might
destroy her hopes and plans for the child’s
future.

[530 U.S. at 101, 120 S. Ct. at 2079, 147 L.
Ed. 2d at 78 (Kennedy, J., dissenting)
(internal citation omitted).]

By virtue of its capacity to intrude upon the privacy of both

parent and child and consume scarce resources, the parties’

litigation may itself infringe on the parent’s due process right

to autonomy, and cause harm to the child whom the Grandparent

Visitation Statute exists to protect.

In light of the compelling interests at stake –- most

critically, the welfare of the child involved –- grandparent

visitation litigation must be conducted with sensitivity and

25
overseen with care. We derive several guiding principles for

the management of these actions from N.J.S.A. 9:2-7.1 and our

case law.

First, as applied to a complex grandparent visitation case,

the Appellate Division’s case management recommendations in

R.K., supra, 434 N.J. Super. at 138, enhance the constitutional

standard articulated in Moriarty. We concur with the panel in

R.K. that in some grandparent visitation actions, the

limitations imposed in summary actions may deprive a litigant of

an opportunity to meet his or her burden under the statute and

case law. See 434 N.J. Super. at 139. We recognize, however,

that the case management procedures envisioned by R.K. also

impose burdens on the privacy and resources of a family, and

that they are neither necessary nor appropriate in every case.

We consider the approach reflected in Rule 5:5-7(c) to

strike the appropriate balance. That Rule requires the trial

court to hold initial and final case management conferences, and

to enter an order addressing the full list of issues set forth

in R.K., only in grandparent visitation cases that warrant

assignment to the complex track. See R. 5:5-7(c). Visitation

applications that are not “complex” may be handled as summary

actions, with or without case management and discovery as

authorized by Rule 5:4-4(a). See R.K., supra, 434 N.J. Super.

at 133 (noting while summary actions are ordinarily tried

26
without case management and discovery, trial courts may order

discovery in appropriate cases); see also H.E.S. v. J.C.S., 175

N.J. 309, 324 (2003) (permitting discovery to protect due

process rights); Welch v. Welch, 401 N.J. Super. 438, 445 (Ch.

Div. 2008) (noting courts will allow discovery when good cause

shown); Depos v. Depos, 307 N.J. Super. 396, 400 (Ch. Div. 1997)

(same). Thus, when a trial court determines the need for

complex case management in a particular case, the Appellate

Division’s case management recommendations in R.K. provide a

practical template for courts and parties.

Second, when a party seeks to have the matter designated as

“complex,” the plaintiff should ordinarily file a non-conforming

complaint, as permitted by Rule 5:4-2(i), to supplement the form

pleading required by Directive 08-11. With no constraints on

the length of their pleadings, many plaintiffs will be in a

position to present a prima facie showing of harm in that

complaint without the need for intrusive discovery. For

example, in a case such as this one, the grandparent would be

able to plead a showing of harm; he or she may allege his or her

contacts with and care for a grandchild when the parent was

alive, the timing and circumstances of the parent’s death, any

changes in family relationships that followed, the nature of the

claimed harm, and other pertinent considerations. See N.J.S.A.

9:2-7.1(b)(1), (2), (3), (5), (8); Moriarty, supra, 177 N.J. at

27
117. Relevant facts within a grandparent’s knowledge should be

presented with precision and detail. Similarly, a parent

opposing visitation should use his or her responsive pleading to

identify issues on which the parties agree and counter the

grandparents’ factual allegations on disputed issues. See R.

5:4-3 (authorizing defendants in family action to file answers

conforming to Rule 4:5-3). Informed by the pleadings, the trial

court can make a considered judgment about the complexity of the

matter, the need for fact or expert discovery, and the issues to

be resolved.

Third, in the event that fact discovery is required, the

court and the parties should work together to coordinate and

streamline the process. See R. 5:5-7(c); R.K., supra, 434 N.J.

Super. at 137-38. Whether the case is designated as complex or

handled as a summary action, Family Part judges have broad

discretion to permit, deny, or limit discovery in accordance

with the circumstances of the individual case. See R. 5:4-4; R.

5:5-7(c); State in Interest of A.B., 219 N.J. 542, 554 (2014)

(noting trial court’s discretion to permit or deny discovery in

Family Part matters); R.K., supra, 434 N.J. Super. at 133

(same). Under the court’s supervision, the parties should

address only the issues in dispute: whether the grandparents

have met their burden to demonstrate harm to the child in the

absence of visitation, and, if so, what visitation schedule will

28
serve the best interests of the child, applying the factors

identified in N.J.S.A. 9:2-7.1. Moriarty, supra, 177 N.J. at

117.

Any discovery should be carefully circumscribed to prevent

or minimize intrusion on the privacy of the child and his or her

family. R.K, supra, 434 N.J. Super. at 151; see also R. 4:10-3

(authorizing courts to enter protective orders to avoid

“annoyance, embarrassment, oppression, or undue burden or

expense”). 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 the welfare of the child.

Fourth, as the Court noted in Moriarty, supra, expert

testimony may be necessary for grandparents to meet their burden

under N.J.S.A. 9:2-7.1. 177 N.J. at 117; see also R.K., supra,

434 N.J. Super. at 138. Particularly in settings in which one

of the child’s parents is deceased, and the other parent has

barred or sharply limited the grandparents from contact with the

child, parties seeking visitation may not have access to current

information about the child’s status. In determining whether

expert testimony is appropriate, trial courts should be

29
sensitive to the impact of expert involvement on family

resources, protective of the privacy of the child, and mindful

of an expert’s potential value to the court and parties in

suggesting a resolution of the dispute.

Fifth, even when it has afforded grandparents the

opportunity to conduct fact or expert discovery, the trial court

should not hesitate to dismiss an action without conducting a

full trial if the grandparents cannot sustain their burden to

make the required showing of harm. To that end, a court may

dismiss summary actions pursuant to Rule 4:67-5, and decide

complex visitation cases by summary judgment under Rule 4:46-

2(c). Consistent with the due process autonomy interests

recognized in Troxel, and Moriarty, a trial court should not

prolong litigation that is clearly meritless.

Finally, trial courts should encourage parties to mediate

or arbitrate grandparent visitation actions in accordance with

New Jersey’s strong policy in favor of alternative dispute

resolution. See Gere v. Louis, 209 N.J. 486, 500 (2012) (noting

state’s policy in favor of alternative dispute resolution); Mt.

Hope Dev. Assocs. v. Mt. Hope Waterpower Project, L.P., 154 N.J.

141, 151 (1998) (same). In a meritorious case, a seasoned

mediator or arbitrator with experience in visitation and custody

issues may devise a solution for the parties’ conflict promptly

and inexpensively, to the benefit of the child and the parties.

30
 D.

Applying those principles, we concur with the Appellate

Division that the trial court erred when it granted defendant’s

informal request and dismissed plaintiffs’ complaint, and that

this case should be remanded to the trial court for further

proceedings. Our remedy differs from the panel’s remedy in one

respect: the trial court need not reexamine the complaint on

remand in order to determine whether plaintiffs have alleged

sufficient facts for a prima facie showing in this case. The

grandparents have established a prima facie case that the

absence of visitation between the grandparents and their

granddaughter will harm the child.

Although defendant did not file a motion to dismiss

plaintiffs’ complaint, the trial court evidently viewed

defendant’s informal application as a motion to dismiss for

failure to state a claim upon which relief can be granted,

pursuant to Rule 4:6-2(e).3 That Rule affords to plaintiffs

3 As an action filed in the Chancery Division, Family Part, this
matter is governed “by the rules of Part IV insofar as
applicable and except as otherwise provided by the rules in Part
V.” R. 5:1-1; see also Pressler & Verniero, Current N.J. Court
Rules, comment to R. 5:1-1 (Gann 2015), (noting that the Family
Part “is a fully integrated component of the Superior Court to
which the rules governing civil and criminal proceedings in the
trial courts are applicable unless otherwise provided in Part
V”). Accordingly, Rule 4:6-2(e) governs a motion to dismiss a
Family Part complaint on the ground that it fails to state a
claim upon which relief can be granted. See Maeker v. Ross, 219
N.J. 565, 570-71 (2014).
31
“every reasonable inference of fact”; a reviewing court

“searches the complaint in depth and with liberality to

ascertain whether the fundament of a cause of action may be

gleaned even from an obscure statement of claim, opportunity

being given to amend if necessary.” Printing Mart-Morristown v.

Sharp Elecs. Corp., 116 N.J. 739, 746 (1989); see also Smerling

v. Harrah’s Entm’t, Inc., 389 N.J. Super. 181, 186 (App. Div.

2006) (noting appellate review of order of dismissal under Rule

4:6-2(e) “is plenary and we apply the same test as the Law

Division”). When plaintiffs are afforded every reasonable

inference of fact, their evidence gives rise to a prima facie

showing of harm.

Plaintiffs’ showing meets the requirements of Moriarty for

several reasons. First, it was not merely a separation or

divorce that prompted the family dispute in this case but the

death of the child’s father. In Moriarty, supra, this Court

recognized the significance of the death of the mother,

crediting the trial court’s finding that the children’s bond

with their mother’s side of the family was critically important

to their security and self-esteem in the wake of their loss.

177 N.J. at 121. The same concerns are raised by the record

here. Plaintiffs demonstrated that their granddaughter enjoyed

a close relationship with her father, who shared custody with

the girl’s mother, and contended that his death caused a major

32
trauma in the child’s life. Plaintiffs represented that they

are the only relatives on their side of the family with whom

their grandchild has a relationship. While a parent’s death,

without more, does not automatically give rise to a prima facie

showing of harm, it is an important factor in this setting.

Second, plaintiffs presented evidence that they had

maintained a close bond with their granddaughter prior to her

father’s death, and assumed significant responsibility for her

care during her father’s parenting time. Plaintiff Suzanne

Major, the child’s grandmother, testified that she visited the

child every weekend when the child was staying at her father’s

home, hosted her granddaughter at her own home about once a

month, attended dance recitals, traveled with the child, and

annually brought the child to work for a special event. She

stated that after the child’s father became ill, she lived part-

time with her son and her granddaughter and cared for the child,

and then later assumed the burden of full-time care for her son.

The recent death of this child’s father, in concert with

plaintiff’s allegation that the child was deprived of the

consistent presence of her grandmother, gave rise to a prima

facie showing of harm.

Although plaintiff Anthony Major offered less compelling

evidence than did his co-plaintiff, he nonetheless presented

sufficient evidence to meet his prima facie burden. He

33
testified that between his son’s separation from defendant and

his son’s death, he saw his granddaughter about every other

week, then more frequently after he purchased his boat.

Plaintiff also testified that during his son’s final illness, he

was present in the home with his former wife, his son, and his

granddaughter several days a week. He met his burden to make a

prima facie showing of harm under N.J.S.A. 9:2-7.1 and Moriarty,

supra, 177 N.J. at 117, at the pleading stage.

As did the Appellate Division, we disagree with the trial

court’s ruling that grandparents may not threaten or institute

litigation before visitation has been denied with finality.

Although all parties should make efforts to resolve grandparent

visitation issues without resorting to litigation, no such

threshold requirement is imposed by N.J.S.A. 9:2-7.1 or the case

law. Indeed, in Moriarty, supra, this Court held that if there

is a finding “that the potential for harm has been shown,” the

“same standard” governs cases in which the parent bars

visitation entirely and cases in which the parent offers a

schedule that the grandparent challenges as inadequate. 177

N.J. at 117-18. In both instances, if the grandparent proves

that visitation is necessary to prevent harm, the court applies

the factors in N.J.S.A. 9:2-7.1 to determine whether the

schedule proposed by the parents promotes the child’s best

34
interests. Ibid. The trial court’s rejection of plaintiffs’

complaint as premature was improper.4

Accordingly, on remand, the trial court should permit this

matter to proceed beyond the pleading stage. Managing this case

as a “complex” matter for purposes of Rule 5:5-7(c), the trial

court should assess the need for fact discovery, expert

testimony, and motion practice in accordance with R.K. and

should encourage the parties to pursue mediation or arbitration

of their dispute. In a dispositive motion, or at trial

following discovery if no motion is granted, the court should

determine whether plaintiffs have met their burden to prove that

in the absence of visitation, their granddaughter will suffer

harm. See Moriarty, supra, 177 N.J. at 117. If either

plaintiff meets the burden of proof, defendant must offer a

visitation schedule to that plaintiff, and, if the parties

cannot agree, the trial court should compel visitation that it

considers to be in the best interests of the child. Id. at 117-

18. If plaintiffs fail to meet that burden, their action should

4 We do not share the Appellate Division’s view that the trial
judge improperly injected his personal views when he admonished
plaintiffs that they should have pursued non-adversarial means
of resolving the controversy before filing suit. It is clear
from the record that the trial court relied in that regard on
the Appellate Division’s decision in Wilde, supra, 341 N.J.
Super. at 398, and was not expressing a personal opinion.
35
be dismissed. See Rente, supra, 390 N.J. Super. at 494 (citing

Moriarty, supra, 177 N.J. at 117).

V.

The judgment of the Appellate Division is affirmed as

modified.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA and SOLOMON; and
JUDGE CUFF (temporarily assigned) join in JUSTICE PATTERSON’S
opinion. JUSTICES ALBIN and FERNANDEZ-VINA did not participate.

36
 SUPREME COURT OF NEW JERSEY

NO. A-110 SEPTEMBER TERM 2013
ON APPEAL FROM Appellate Division, Superior Court

ANTHONY C. MAJOR and
SUZANNE MAJOR,

Plaintiffs-Respondents,

v.

JULIE MAGUIRE n/k/a
JULIE DI LIBERTO,

Defendant-Appellant.

DECIDED January 12, 2016
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY

AFFIRM AS
CHECKLIST MODIFIED/
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN --------------------
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA --------------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 5