Can grandparents in New Jersey force the parents of their grandchildren over their objection (assuming the parents are competent) to grant them visitation with their grandchild?

In common law the answer was “No” because of the constitutional due process rights of parental autonomy. The parental decision was final. 

    The answer is now a qualified “yes”, under certain circumstances.  New Jersey has a statute, N.J.S.N. 9:2-7.1, which has been amended and construed over the years since 1972, which permits an action for visitation by grandparents.  The statute is subject to strict scrutiny and is only constitutional if it is narrowly tailored to serve a compelling state interest.  The only state interest is “if the child would suffer harm if deprived of contact with his or her grandparents.”  This is a very high obstacle to overcome, as there is a presumption of correct parental decision making.

    A recent case was decided by the New Jersey Supreme Court on January 12, 2016 in the matter of Major v Maguire, a-110-13 (2016) regarding the statue and interpretation of grandparent’s rights to visitation.  In that case the Majors were the grandparents of a granddaughter born to their son Chris and defendant Ms. Maguire, who cohabited with the child between 2007 and 2009.  In August 2009 Christ was diagnosed with cancer and four months later separated from Ms. Maguire.  Before and during their son’s sickness the grandparents became close to the child, caring for her when she was visiting her father.  Chris died in February 2013 and the relationship between the grandparents and mother became antagonistic.  The mother soon forbade the grandparents to see the grandchild, which followed with the grandparent’s action to compel visitation.

    The trial court dismissed the Complaint based on its finding with little discovery that the Complaint did not show a particularized identified harm to the child.  Defendant’s counsel advised the Court that the child was doing well in school and was happy at home with her mother, stepfather and newborn baby brother.  The grandparents appealed the Trial Court’s decision and the Appellate Division reversed and remanded the case back to the Trial Court.  The Supreme Court then granted Certification, 218 N.J.530 (2015) in order to clarify what must be done.

    The Supreme Court then set forth the circumstances and rules which would be required for the grandparents to compel visitation of the grandchild over the objections of competent parents.

    In every case where visitation is denied by the parents, the grandparents bear the burden by preponderance of the evidence to prove that visitation is necessary to avoid harm to the child.  Preponderance of the endeavor means “more likely than not.”

The evidence may be factual or be presented by an expert.  For example, the grandparents may rely upon the death of a parent or the break-up of the child’s home through divorce or separation together with the termination of a long standing relationship between the grandparents and child, with expert testimony assessing the effect of those circumstances to form the basis of a finding of harm to the child.

    When the grandparents present a showing of harm to the child, the presumption of parental decision-making is overcome.

    When the presumption is overcome by a showing of harm to the child, the parent must offer a visitation schedule.  If the schedule is agreed upon that will be the end of the inquiry.  If not agreed upon the Court would have to decide upon a visitation schedule based on the application of the statutory factors which include things such as the relationship between the child and grandparents, length of time of last contact, time arrangements that exist between divorced or separated parents, the good faith of the parties, history of abuse or neglect and any other relevant factors to the best interests of the child.

    The statute and case law requires that a meticulous, fact specific analysis be made of each case of grandparent visitation in New Jersey.

    What happened in the Major’s Case?

    In the Major v Maguire case, the Supreme Court found that the Major’s met their burden of  proving harm to the granddaughter because 1) the family dispute was prompted by the death of the child’s father.  The child’s bond with her father’s side of the family was critically important to her self-esteem and security in the wake of that loss.  2) the grandparents presented evidence that they maintained a close bond with their granddaughter prior to her father’s death and assumed significant care for her during her father’s parenting time and illness.

    The Case was remanded back to the Trial Court.
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The final result is that a visitation schedule should be offered by Ms. Maguire.   If not accepted, the Trial Court would then schedule a to trial to determine how much visitation would be necessary to prevent harm to the child.   The bottom line is that while difficult, successful grandparent’s visitation cases are possible.

Hazing is the practice of rituals and other activities involving harassment, abuse and humiliation used as a way of initiating a person into a group.  Fraternities, Sororities and Sports Clubs have traditionally used hazing as a sort of christening into the group.  It is becoming a more dangerous and sometimes illegal practice as deaths and injuries are increasingly resulting from it and sometimes even death.  82% of deaths from hazing involve alcohol according to noted hazing expert Hank Nuwer and is frequently about power and control.  Individuals cannot consent to being hazed.

Current news in New Jersey concerns the hazing which has allegedly occurred at the Sayreville High School football team locker room.  The incident has led to criminal, and will lead to civil law fallout.

Accusations that seven High School football players sexually assaulted younger teammates has already led to criminal charges being filed.  The most serious charge of aggregated sexual assault requires proof of sexual penetration of a person less than16 years old.  There are also lesser included counts.  These are all very serious criminal allegations.

Because the alleged perpetuators are all minors, their names have not been released to the public but at least one player, Myles Hartfield, had a scholarship offer to play at Penn State rescinded by the University.  New Jersey has an anti-hazing law but not a reporting law.  Legislation is being introduced in New Jersey to require that teachers, school administrators and athletic coaches, among other professionals, will be legally required to report child abuse in the State.  New Jersey is one of only two states that does not have such a law on the books at present.

“It is a shortcoming in our law that was brought to light by the recent child abuse case in Sayerville and domestic abuse case in the NFL” said Senator Ray Lesniak in an interview with New Jersey Advice Media on October 19, 2014.

Four coaches from Sayreville have been suspended (with pay) from their jobs as teachers and coaches pending further investigation.

More fallout will be the likelihood of civil suits against the school district by the freshmen victims and their families.  The basis of the school district liability will probably be based on theories of negligent hiring, training and failure to supervise, as well as negligent inflection of emotional distress and sexual harassment under the New Jersey law against discrimination, according to the New Jersey Law Journal article by Mary Pat Gallagher in Vol 218 No 3 dated October 20, 2014.

I would not be surprised by lawsuits being also brought against the individual coaches and administration which will lead to wholesale changes in that school district.

Plaintiff’s successfully brokered large settlements with Penn State over the Sandusky incidents which were based on many a course of action theories enumerated above, so we could expect the same results in Sayreville.

Negative fallout still rests on the reputation of Sayreville and its football program.  After things are made right as possible, with any guilty individuals fairly prosecuted, victims compensated, and after a wholesale staff housecleaning, Sayreville will have to have better safeguards in place before they can again be able to compete on the football field.  This was a hard lesson and warning to all other school programs in New Jersey and elsewhere to actively keep hazing out of football and other school run sports and programs.  The new legislation that requires professionals to report suspected child abuse is long overdue, and should be passed by the legislature as soon as practical.

There is no room for hazing or any type of bullying regarding schools in New Jersey, and we have to have the tools in place to keep it that way. -JDG

A homeowner wants to expand his garage, another wants to put a shed on his property and a third wants to conduct his insurance business from his home. They all go to Town Hall to speak with the town’s zoning officer about their plans.

To their surprise, they are all turned down.  They cannot do the work they had set their hearts on due to a strict reading of the local zoning laws.  What is their next step if they want to continue to try to advance their plans?  They must apply for a Variance to the local Zoning Board of Appeals.

A Variance is a form of equitable relief allowing the homeowner to apply for an exception to the local zoning laws.  There are two types of Variances, Area Variance and Use Variance.

An Area Variance is more common.  It asks to by-pass or have created an exception to the town ordinances due to difficulties encountered with complying with physical requirement issues pertaining to their land or building wishes.  The homeowner above who wishes to expand his garage was turned down because of lot coverage.  It other words, the local zoning ordinance requires that a certain percentage of the lot be uncovered by structures.

Our second homeowner was turned down because his planned shed violated the town’s set back ordinance.  That ordinance requires that all structures be at least a certain number of feet from their neighbor’s property line.

Our insurance agent has to request a Use Variance, the second type of Variance.  He wants to use his property in a way that deviates from the local zoning standards because he wants to conduct business in a zone classified as residential use only.

In Use cases, the applicant must show that the zoning restriction has caused him unnecessary hardship.  In order to prove unnecessary hardship, he must demonstrate:

(1)  That he cannot realize a reasonable return evidenced by competent financial evidence;

(2)  The hardship is unique to this property and doesn’t apply to a substantial portion of the neighborhood;

(3)  The requested variance wouldn’t alter the essential character of the neighborhood; and

(4)  The hardship wasn’t self-created.

If the Board of Appeals grants the requested Variance, it would grant the minimum Variance to address the hardship, while preserving and protecting the character of the neighborhood.

In Area cases, the Appeals Board takes into consideration the benefit to the applicant weighed against the detriment to the health, safety and welfare of the neighborhood or community.  The Board considers the following criteria:

(1)  Whether the granting of the Variance will produce an undesirable change to the character of the neighborhood;

(2)  Can the result be achieved by some other method;

(3)  Whether the requested Area Variance is substantial;

(4)  Whether the Variance will adversely affect the physical or environmental condition in the neighborhood; and

(5)  Whether the difficulty was self-created.

 As with Use Variances, the Bond will grant the minimum Variance necessary while at the same time protecting the character of the neighborhood.

In both use and area cases, neighbors would be notified of the requested variances.  Neighbors will be able to give input and can be an obstacle to the granting of the Variance if those living nearby feel the project may somehow harm their own property value.  The board usually gives them a lot of weight.

In conclusion, the homeowners seeking a Variance must jump through many hoops, but with preparation and cooperation can successfully “fight city hall” and obtain their requested Variance, and can complete their project. -JDG

Someone is stopped by police upon suspicion of drunk driving. The police want him/her to take a breath test. The driver refuses to consent to take a breathalyzer test, so the police give the driver a standard warning that indicates the judge has discretion whether to impose penalties based on that refusal.

This is not so. A driver faces mandatory minimum penalties for refusing to take the breath test, even if he has not been drinking! You just cannot refuse without penalty. A refuser actually faces a mandatory license suspension, fines, ignition locking devices and drivers’ school. Although the standard warning states the maximum repercussions for refusal, it does not state the minimum. If the minimum was stated, that the driver’s license must be suspended for at least seven months, etc. the driver may change his/her mind and consent to the test after all. By not taking the test the driver is guilty.

This very argument is being urged by the New Jersey Bar Association, who is filing an Amicus Curiae (Friend of the Court) brief on behalf of all drivers. This case is pending before the New Jersey Supreme Court in State v. O’Driscoll, A-7-12. The Bar Association is arguing that the current warnings should be changed to require the police to list the mandatory minimum penalties along with the maximum penalties if the driver continues his/her refusal to take the breath test. They are proposing that the warnings at present are just inadequate. I believe that the Supreme Court should accept this argument in the interest of true Justice for All.
-JDG

Very recently, two Bergen County attorneys were charged with ethics violations by having their female paralegal become Facebook friends with the Plaintiff who was suing their client. They found out personal facts not available to the general public and used it to discredit him in discovery.

Was this good investigation or unethical behavior?

This issue reminds me a of a case tried by my deceased Partner, Robert J. Carluccio way back in the sixties called Massiah v. United States 377US201 (1964), which was a precursor case to the famous "Miranda" rights case, Miranda v. Arizona 384US436 (1966). Bob took Massiah "in forma pauperis" (for free) all the way to the United States Supreme Court. In this case, Federal Agents planted a bugged snitch to befriend Massiah while he was awaiting trial for drug charges in order to get him to make incriminating statements and adminssions while they listened in. The Court held that this behavior violated his Sixth Amendment constitutional right to counsel, as they "interrogated" him without counsel present.

In both cases, the litigant was "tricked" by his adversary who used a third person to get them to reveal things about themselves without counsel being presnt to later be used against them. The trust is that to preserve the functional integrity of our adversarial system, it is vital that, once proceedings have been intiiated, attempts to circumvent the proctions afforded by counsel cannot be tolerated.

The Bergen County attorneys are presently fighting the ethics charges claiming that they did not direct the paralegal to facebook friend the plaintiff, they were unfamiliar with facebook privacy settings, and that they did not intend to use a ruse or subterfuse.

Use of social media will raise new ethics questions and problems which we never had to deal with before. It will be very interesting to see how this issue will develop from a legal perspective. - JDG