“Robotic” Treatment of Grandparent Visitation Cases in Family Part is Improper

R.K. v. D.L., Jr., 434 N.J. Super. 113 (App. Div. 2014).  At least since Printing Mart v. Sharp Electronics, 116 N.J. 739 (1989), it has been clear that motions to dismiss for failure to state a claim, Rule 4:6-2(e), are disfavored and are to be viewed indulgently in favor of permitting a case to proceed.  In this case, however, involving a Family Part complaint that sought visitation rights for grandparents, the Family Part granted a motion to dismiss for failure to provide expert testimony at the pleadings stage.  Writing for the Appellate Division, and applying the de novo standard of review, Judge Fuentes concluded, in a lengthy opinion that occasionally displayed the panel’s indignation, that the dismissal was error.

The Family Part not only failed to follow the leading case in this area, Moriarity v. Bradt, 177 N.J. 84 (2003), whose facts Judge Fuentes found bore “remarkable similarities” to those here, but the Family Part’s case initiation system produced the anomalous result that a complaint prepared by an attorney with particularized facts was treated as less viable than a form complaint available for use by pro se parties.  And though Moriarity itself stated that, in a grandparents’ visitation case, “the grandparents’ evidence can be expert or factual,” the Family Part mistakenly penalized plaintiffs for not providing expert testimony up front or, at the very least, giving plaintiffs more time to produce expert evidence.  Finally, the Family Part erred by failing to treat the motion to dismiss as one for summary judgment, given that the Family Part had considered the parties’ factual allegations contained in certifications that went beyond the face of the complaint.  There were material disputes of fact that the Family Part simply overlooked.  The Family Part thus erred on multiple levels, and the Appellate Division reversed the dismissal, remanding the case for discovery, dispositive motions if appropriate, and a plenary hearing if motion practice proves “an unsuitable means” to resolve the case.

The core of the opinion is a lengthy discussion about “a number of systemic anomalies” in the Family Part that resulted in “robotic” treatment of plaintiffs’ complaint.  For example, the Family Part originally refused to file plaintiffs’ complaint because it was not a “form complaint” as required for “non-dissolution” matters in the Family Part, and then required plaintiffs, who live in Florida and were represented by counsel, to appear personally in New Jersey at a “case management conference” for which no appearance by clients should have been necessary.  Judge Fuentes traced the evolution of the requirement of a form complaint, a requirement instituted “to better service the large majority” of non-dissolution cases.  He concluded that grandparent visitation cases simply did not fit within the “summary action” procedures established for the ordinary class of non-dissolution cases.  The “default approach can be inconsistent with sound principles of judicial case management, and potentially inhibit the grandparents’ due process rights to prosecute their case in a manner likely to produce a sustainable adjudicative outcome.”  Judge Fuentes outlined in detail some steps that should be taken to case-manage a grandparents’ visitation case properly.

This lengthy opinion is well worth reading in full, even for those who have no involvement with Family Part matters.  It tells the story of how a properly-adopted and well-intended procedure, useful in advancing many non-dissolution cases, failed these parties when it was misapplied in their case, an unfortunate situation that was then compounded by the Family Part’s multiple levels of addiitional error.  Judge Fuentes’s opinion compellingly shows that “plaintiffs’ cause of action fell prey from its inception to a systemic approach that placed the case on the conveyor-belt of ‘pro se non-dissolution summary actions.'”  With the guidance of this opinion, it is to be hoped that other parties will be spared a similar fate in these very sensitive and emotionally freighted cases.

Leave a Reply