                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-2338-12T1



R.K. and A.K.,1
                                        APPROVED FOR PUBLICATION
     Plaintiffs-Appellants,                January 13, 2014

v.                                        APPELLATE DIVISION

D.L., JR.,

     Defendant-Respondent.
_______________________________________

          Argued December 11, 2013 – Decided January 13, 2014

          Before Judges Fuentes, Fasciale and Haas.

          On appeal from Superior Court of New Jersey,
          Chancery Division, Family Part, Bergen County,
          Docket No. FD-02-387-13.

          Martin J. Arbus argued the cause for appellants
          (Arbus, Maybruch & Goode, LLC, attorneys;
          Mr. Arbus and Matthew R. Goode, on the briefs).

          Amy F. Gjelsvik argued the cause for respondent
          (Daggett, Kraemer & Gjelsvik, attorneys;
          Ms. Gjelsvik, on the brief).

          The opinion of the court was delivered by

FUENTES, P.J.A.D.




1
  To protect the identity of the twelve-year-old child, the court
has chosen to use initials for the parties.
      Plaintiffs R.K. and A.K. are the maternal grandparents of

twelve-year-old Olga.2           Plaintiffs filed a verified complaint in

the   Family        Part    seeking       visitation           rights        with      their

granddaughter       pursuant     to     our       State's   grandparent       visitation

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

      After joinder of issue, but before the parties engaged in

any discovery, the child's father, defendant D.L., Jr., filed a

motion to dismiss the complaint under Rule 4:6-2(e), for failure

to state a claim upon which relief can be granted.                             The court

granted defendant's motion and dismissed plaintiffs' cause of

action without conducting an evidentiary hearing or affording

counsel     for    either    side       the       opportunity      to    present        oral

argument.      The court based its decision to dismiss this case on

plaintiffs'       failure   to      provide       expert    testimony.         The     court

thereafter        denied    plaintiffs'            motion    for     reconsideration,

although on that occasion it afforded counsel the opportunity to

present oral argument on the matter.

      Plaintiffs now appeal arguing the Family Part erred when it

dismissed their complaint before they had the opportunity to

engage    in   discovery       or     present       evidence    in      an   evidentiary

hearing.       Plaintiffs        also    argue        the   court       misapplied        the


2
  We have fictionalized the names of the children for ease of
reference.



                                              2                                     A-2338-12T1
standard applicable for deciding a motion brought under Rule

4:6-2 because the allegation raised in their complaint, together

with    the    certifications            submitted      in    response        to     defendant's

motion to dismiss, were sufficient to establish a prima facie

cause    of    action       under     N.J.S.A.        9:2-7.1,       and     raised     material

questions          of     fact    that     can       only    be     resolved         through    an

evidentiary hearing.

       We agree with plaintiffs' arguments and reverse.                                The facts

alleged       by        plaintiffs    in    their       complaint          and     supplemental

certifications established a prima facie case for relief under

N.J.S.A.       9:2-7.1.              Moreover,         because         the    court      decided

defendant's         Rule     4:6-2(e)      motion      after      it    considered       factual

allegations made by the parties in certifications outside the

pleadings,         it     was    required    to       apply    the      standard       governing

summary judgment motions in Rule 4:46-2(c).                                  Roa v. Roa, 200

N.J. 555, 562 (2010).                The court erred in granting defendant's

motion to dismiss because the record shows the parties have

clear disagreements concerning the nature and significance of

key events in their lives.                  Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c).                               Most importantly,

the     parties'          disagreements      are        rooted       in      their     seemingly

irreconcilable            perceptions       of    how       these      tragic      events      have

affected Olga's emotional wellbeing.




                                                 3                                      A-2338-12T1
    Given       the    complexity    and    magnitude    of    the   tragic    facts

alleged here, the court also erred by dismissing plaintiffs'

complaint       without   affording      them   the    opportunity     to   conduct

discovery in order to gather sufficient evidence to overcome

defendant's       presumptively         valid    objection      to     grandparent

visitation as Olga's father.               Once discovery is completed, the

court may then entertain the filing of dispositive motions, if

warranted by the evidence.              If motion practice proves to be an

unsuitable means for resolving this dispute, the court must then

conduct     a    plenary      hearing      to   assess   the     credibility       of

witnesses' testimony, after they have been subjected to rigorous

cross-examination.

    Finally, the court also erred in concluding plaintiffs were

required to present expert testimony to meet their burden of

proof in this case.           Grandparents can meet their burden of proof

that regular contact with their grandchild is necessary to avoid

harm to the child without presenting expert testimony.                        As our

Supreme   Court       noted   in   Moriarty     v.   Bradt,   177    N.J.   84,   117

(2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed.

2d 78 (2004), "[t]he grandparents' evidence can be expert or

factual."       It was also unfair for the trial court to base its

decision to dismiss plaintiffs' case based                    in large part on

their failure to produce expert testimony, while the case was at




                                           4                                A-2338-12T1
its most embryonic phase and after denying them the opportunity

to engage in discovery.

       We gather the following facts from the pleadings and the

certifications submitted by the parties in support of and in

opposition to plaintiffs' motion for reconsideration.

                                          I

                                 UNDERLYING FACTS

       Defendant was twenty-five years old at the time he met

plaintiffs'      twenty-one-year-old           daughter    K.K.     Defendant       was

introduced to K.K. by her brother, who was also defendant's

roommate at the time.           The couple lived together for a period of

time   before    they    eventually      married      in   2000.    They      had   two

children, Olga born in 2001 and Charles born in 2004.

       Plaintiffs acknowledge that their daughter was addicted to

pain medication at the time she married defendant.                       Plaintiffs

also claim, however, that defendant knew of her addiction before

the    wedding   and    agreed    to    help    her   overcome     it.     K.K.     was

originally prescribed this medication to alleviate the pain she

suffered    as   a     result    of    being    seriously     injured    in     a   car

accident years earlier.           Plaintiffs' younger son was killed in

this same accident.         He was a passenger in the car driven by

K.K.




                                          5                                   A-2338-12T1
      According to defendant, K.K.'s drug abuse issues predated

the   automobile     accident.      In   his    certification      submitted     in

support     of     his    motion   to    dismiss     plaintiffs'     complaint,

defendant averred that in the course of his divorce he "learned

for the first time that [K.K.] started experimenting with drugs

at age 13."       Defendant believes the car accident served only to

exacerbate       K.K.'s   preexisting    drug   abuse   problem     because     she

abused pain medication as a misguided effort "to self-medicate

against    her    emotions    related    to    the   guilt   and   loss   of    her

brother."

      The marriage between defendant and K.K. lasted only four

and one-half years.          The couple separated in 2004; the court

entered a final judgment of divorce in August 2006.                  Ostensibly

driven by his concern over K.K.'s addiction, defendant fought

hard to obtain physical custody of the children pendente lite.

However,    in    August   2005,   the   matrimonial     court     awarded     K.K.

physical custody of the children, although both parents were

given joint legal custody.

      Based on the record before us, it seems clear defendant

still resents plaintiffs for the role they played in the court's

custody decision.          In defendant's view, the matrimonial judge

was heavily, if not unduly influenced by plaintiffs' assurances

that they would be available to help their daughter with the




                                         6                                A-2338-12T1
care    and   supervision     of    the   children   because     she   and    the

children would reside with plaintiffs in their house in Howell.

       As a result, commencing in August 2005, plaintiffs shared

their    home    with     their    daughter    and   grandchildren.          This

arrangement continued for six years, until plaintiffs relocated

to Florida in April 2011.             From plaintiffs' perspective, the

time they spent with their granddaughter, during the formative

years of this child's life, enabled them to forge a strong,

close, and loving relationship with her.                  Defendant sees this

arrangement very differently.             In his view, plaintiffs merely

meddled in his family's affairs, undermined his parental role

and authority over his two children, and most importantly, in

retrospect, left his infant son in the hands of a drug-addicted,

emotionally unstable woman who proved to be utterly incapable of

keeping him safe.

       The animosity between defendant and plaintiffs engendered

by the court's custody decision reached a critical point on

November 14, 2005, the day eighteen-month-old Charles tragically

drowned in a koi pond located in the backyard of plaintiffs'

house    in     Howell.      Plaintiffs       described    the   circumstances

surrounding their grandson's death in paragraphs 25 and 26 of

their verified complaint:

              [E]veryone was at home and asleep after
              spending the entire night in the emergency



                                          7                            A-2338-12T1
          room due to a medical issue suffered by
          [plaintiff R.K.] during the course of the
          evening.[3] The parties awoke in the morning
          with the screams of [K.K.] that she could
          not find [Charles]. It was later determined
          that [Charles] had apparently slipped out of
          the house into the backyard and had fallen
          into a fish pond and drowned. The fish pond
          was only one foot deep.      The matter was
          thereafter investigated by both the Monmouth
          County Prosecutor's Office and Howell Police
          Department and both determined this was a
          "tragic accident."   Everyone was devastated
          by the loss of [Charles].

          Following the death of [Charles], defendant
          served [K.K.] with papers for sole custody
          of [Olga].    The same judge that made the
          original decision regarding physical custody,
          again gave primary custody of [Olga] to
          [K.K.] in early December of 2006.

      Despite     evidence    indicating    otherwise,   defendant     still

holds plaintiffs in large part responsible for Charles' death.

The   following     passage    from   his   certification   captures    the

essence and depth of defendant's feelings in this regard.

          I am a reasonable man and understand in life
          accidents happen but my son's death was more
          than avoidable had the Plaintiffs simply
          fulfilled the responsibility they begged
          for.     The   police  report   states  that
          [Charles] had drowned and was under water
          for approximately 20 minutes.     To me that

3
  Defendant claimed in his certification to the trial court that
the medical emergency suffered by R.K. that night was caused by
a chronic alcohol abuse problem.     Plaintiff A.K. denied this
allegation   in  her   response  certification  in   support  of
plaintiffs' motion for reconsideration. She claimed her husband
suffered an acute case of acid reflux, which initially mimics
the symptoms of cardiac arrest.



                                      8                          A-2338-12T1
            means [Charles]    was out of the house
            navigated the stairs, wandered the yard for
            an undocumented amount of time until he
            happened upon the unfenced koi pond and fell
            in.    Being only 18-months old, [Charles]
            required constant supervision, as do all
            toddlers.   Knowing that [K.K.] was battling
            her drug addiction and my concern for the
            children's safety, the [Ks] promised the
            Courts to supervise her parenting time.
            Where were the [Ks] while [Charles] was
            escaping the house, wandering the yard,
            drowning in the pond and lifeless for
            another 20 minutes?[4]

    Following Charles' death, defendant filed a wrongful death

action against plaintiffs alleging negligent supervision as the

ground for liability.        According to A.K., she and her husband

agreed to settle the case because their home insurance carrier

assured them that: (1) the settlement did not constitute an

admission   of   liability    on     their   part:   and   (2)     half   of    the

settlement proceeds would be paid to their daughter as Charles'

mother.

    Simultaneous      with   the     wrongful     death    action,    defendant

filed an emergent application before the Family Part to obtain

physical    custody   of     Olga,     alleging      his   son's     death      was

indicative of K.K.'s unfitness to parent Olga or be responsible


4
   Plaintiffs denied defendant's allegations concerning the
circumstances that led to Charles' death.    Specifically, A.K.
submitted a rebuttal certification before the trial court in
which she averred that Charles was only "missing a total of 10-
11 minutes."



                                       9                                  A-2338-12T1
for her welfare and safety.             Defendant also claimed plaintiffs

failed to honor the assurances they made to the                          matrimonial

court that induced the judge to award physical custody of the

children to their daughter.             Despite this tragic event and the

serious     nature   of   defendant's            allegations,      the   Family     Part

denied defendant's motion for a change in physical custody and

continued plaintiffs' involvement in Olga's life.

      It appears the court's decision to deny defendant custody

of   Olga   following     the    death       of     his    son    continues    to    vex

defendant and invoke in him a strong emotional reaction.                            Once

again we cite to defendant's certification:

             For reasons unbeknownst to me, my emergent
             request for custody of [Olga] was rejected
             and the Judge simply stated he didn't want
             to place blame for [Charles'] death at that
             time. I simply wanted my right as a father
             to protect my daughter from any further harm
             and prevent her from suffering the same fate
             as her brother. (Emphasis added).

We pause to note that the record before the Family Part, and

later   provided     to   us    in    this       appeal,   does    not   contain     any

evidential     support     for       holding       plaintiffs      responsible       for

Charles'    tragic   death.          Yet,    eight    years      after   the   child's

death, defendant continues to blame plaintiffs for this tragic

accident.

      Plaintiffs decided to relocate to Florida in November 2009,

but permitted K.K. to remain living with Olga in their home in



                                            10                                 A-2338-12T1
Howell.      As    represented         in    paragraph       28    of    their      verified

complaint, plaintiffs kept in daily telephone contact with their

daughter and granddaughter.              They also returned to New Jersey in

2010 to spend the Christmas holiday with their entire family,

which     included      their    two     other    sons       and     their     wives      and

children, including five of Olga's maternal cousins.                           Plaintiffs

returned to Florida on December 31, 2010, and continued to call

Olga and K.K. on a daily basis.

       A reasonable person can view the events recounted thus far

as constituting more than a lifetime worth of suffering for both

sides of this family dispute.                However, another great and tragic

loss    awaited    in   2011.       As      revealed    in    paragraph        29    of   the

verified    complaint,      in   early       February    2011,          K.K.   called     her

mother and told her, in an alarmed fashion, that "she felt a pop

in her chest."          Although A.K. advised her daughter to see a

doctor or go to a clinic, she never did.                          Plaintiffs described

what    followed     this   event      on    paragraph       30    of    their      verified

complaint.

            On March 7, 2011, [A.K.] received a call
            from [Olga] that she had come home from
            school and found her mother unconscious in
            the bedroom. [A.K.] told [Olga] to stay on
            the phone and [A.K.] called Howell Police.
            She also called their eldest son, [R.K.],
            who lived in Marlboro, New Jersey to drive
            over to be with [Olga].    The ambulance and
            police arrived at the home and [A.K.] spoke
            to a female officer to tell her that her son



                                             11                                     A-2338-12T1
             was   on   the  way   to   be  with  [Olga].
             Plaintiffs were advised that [K.K.] was
             breathing but unconscious and they needed to
             take [Olga] to the police station unless
             their son could get there before the
             ambulance left. Plaintiffs' son [R.K.], did
             arrive in time and [Olga] was released to
             his   home   in  Marlboro.     That  evening
             [defendant] went to [R.K.'s] home and picked
             [Olga] up from the home.

      K.K. was diagnosed with "a heart valve problem."               She was

admitted to two separate hospitals for a period of four weeks.

Her mother A.K.      kept in constant telephone contact with her

daughter in New Jersey until she flew from Florida on March 10,

2011.      According to plaintiffs, defendant only allowed Olga to

call her mother on the phone two times during her month-long

stay at Robert Wood Johnson Medical Center in New Brunswick.                He

did not allow Olga to visit her mother during the entire four-

week period of her hospitalization.

      K.K. had heart surgery at Robert Wood Johnson sometime in

the last week of March 2011.          Although she seemed to be doing

well approximately a week after her surgery, K.K. died at six

o'clock in the morning on April 2, 2011.                Her brother      R.K.

notified defendant, who, according to plaintiffs, responded via

a   text   message   "stating   he   was   simply   leaving   the   issue   of

[Olga's] attendance at the funeral to [Olga] and that he was not

going to sway her either way."             Defendant allegedly followed




                                      12                             A-2338-12T1
this   initial   text   message     with    a   second     text   stating   the

following:

           [Olga] and I will be coming for the private
           viewing.    I want her to be encouraged to
           only stay a short time. She will not leave
           my sight.    I don't want her to know any
           details other than her mom's heart was sick
           and the doctors did everything they could
           and lastly, I don't want any discussion
           about how she is to call to talk to you in
           the future as that is what you and I will
           discuss in the days ahead. If she asks simply
           say, we will talk and text soon, you and I
           will work those details out later. . . .

       Despite the curtness of this message, plaintiffs claimed

that when defendant appeared at the funeral "everyone hugged and

plaintiffs told [defendant] they still loved him and he was like

a son to them during the marriage."                According to plaintiffs,

Olga ran and hugged her grandmother as soon as she came out of

the car at the funeral and never left her grandmother's side "as

they went to see her mother."         A.K. also claimed that when Olga

asked her father when she could see her maternal grandparents,

he told her "that would get sorted out very soon and I'll call

your grandmother to discuss all of that."

       Plaintiffs   allege   that   the    first    time   Olga   called    them

after the funeral was on May 6, 2011.                 The child spoke with

plaintiffs   for    approximately    twenty     minutes     while   defendant

listened on the extension line.            According to plaintiffs, the

conversation ended when defendant "promised that he would do



                                     13                               A-2338-12T1
everything     to   maintain    the   relationship         between    [Olga]      and

plaintiffs."

       Plaintiffs spoke on the phone to Olga again on May 12,

2011, but only for a few minutes.              The child allegedly told her

grandmother that her father "was in the bathroom and she would

have to hang up if he comes out."              The next call occurred seven

days later on May 19, 2011.             Defendant again listened on the

extension line as Olga asked her grandmother when she was coming

to visit her.       The child played the flute for her grandparents

over    the   phone,   spoke    about    her    cat    who   then     lived     with

plaintiffs in Florida, and she mentioned making new friends in

school.

       Defendant permitted Olga to call plaintiffs nine times over

the next thirteen months.        Plaintiffs alleged they did not speak

to their granddaughter in June, August, September, and October

2011.     The last call the child made was on January 30, 2012.

Plaintiffs     attempted   to    call    Olga    on    a   daily     basis     using

defendant's    landline    to   no    avail.      Plaintiffs         also   suspect

defendant had taken Olga's cell phone.                Plaintiffs' attempts to

reach the child via email were also fruitless.                     Their several

emails to defendant asking to discuss the situation in an effort

to reach a mutually agreeable protocol for contacting Olga were

unanswered.     Plaintiffs thus claimed they "exhausted all efforts




                                        14                                  A-2338-12T1
to   amicably   resolve   this   matter     directly   with    the   defendant

without the cost of litigation."

      Defendant sees matters completely differently.                 He views

the time plaintiffs spent with Olga before her mother's untimely

death as a negative and abusive experience to his daughter's

emotional and physical wellbeing.           The following paragraphs from

defendant's     certification    to   the   trial   court     illustrate    the

magnitude of the discord:

           25. The danger and abuse that [Olga] had to
           endure over the past few years took its toll
           on every facet of her life, having a
           negative impact on her health, safety, and
           well-being. [sic].   She was physically and
           emotionally suffering on a daily basis. The
           Plaintiffs knowingly watched [Olga's] home
           life    with    her    mother    drastically
           deteriorate.   The Plaintiffs were the only
           ones who knew the true condition of [Olga's]
           mother's home and A.K. later admitted to me
           on the telephone that she feared for
           [Olga's] safety but she still did nothing to
           protect [Olga]. As I continued to fight for
           [Olga's] safety through the Courts, through
           her school, and DYFS,[5] the Plaintiffs

5
  "DYFS" stands for Division of Youth and Family Services, now
known as the Division of Child Protection and Permanency.
Plaintiffs strongly dispute any implication that DYFS ever
investigated their late daughter based on any allegations or
suspicions of abuse or neglect of her children.    As previously
noted,   plaintiffs   averred    law   enforcement   authorities
investigated the cause of Charles' death and found no evidence
to conclude it was nothing more than a tragic accident.
Evidence relating to plaintiffs' activities during the time Olga
resided with them needs to be gathered through the process of
discovery. We anticipate that this discovery will also include
evidence showing what concrete action, if any, defendant took to
                                                     (continued)


                                      15                              A-2338-12T1
         continue to watch [Olga's] life deteriorate
         to the point where she was wearing dirty
         clothes, at times had no food, barely slept,
         and had fallen so far behind in school that
         her promotion from the fourth grade was
         questionable.

         . . . .

         27. Ultimately, after years of fighting for
         [Olga's] safety, it took her mom's death to
         bring to light all of the horrors in
         [Olga's] life that the Plaintiffs were
         knowingly covering up while they continued
         to enable their daughter's drug addiction.

         28. The time [Olga] has spent with the
         Plaintiffs was clearly not the sunshine and
         roses they describe in their Complaint.
         Their relationship with [Olga] following the
         death of her mother has continued to be
         detrimental   to    her.    Plaintiffs  have
         constantly placed a great amount of pressure
         on [Olga] to do things.   She is told words
         like "you must call me or I'll get upset"
         and until the last 18 months she had felt
         the unnecessary pressure to the point she
         would break down in tears.        During one
         conversation with [A.K.], [Olga] was even
         told that she should have called her mom in
         the hospital. That caused [Olga's] grieving
         process to backslide and caused several
         sleepless nights and an extra trip to the
         grief counselors.[6]


(continued)
rescue his children from the deplorable and abusive conditions
he described in his certification.
6
  In lieu of subjecting the child to additional and possibly even
unnecessary psychological scrutiny, plaintiffs suggested the
trial court order defendant to permit Olga's grief counselor to
opine if preventing her from having any contact with her
maternal grandparents was harmful to her psychological and
emotional wellbeing.    Defendant objected to this approach and
                                                      (continued)


                               16                        A-2338-12T1
                                         II

                             PROCEDURAL ANOMALIES

    Before       we   address     the   substantive    basis      of   the   trial

court's ruling, we will review in some detail the procedural

journey plaintiffs' complaint traveled before it was dismissed

on defendant's Rule 4:6-2 motion.             Through this review, we have

identified   a    number     of   systemic    anomalies    that   inadvertently

inhibited plaintiffs' ability to present their case in a manner

likely to produce a sustainable adjudicative outcome.

    As     required    by    Rule     2:6-2(a)(3),    plaintiffs'      appellate

brief   contained      a    section     describing   the   case's      procedural

history.    As part of this history, plaintiffs noted that

            [o]n   or  about   July   13,   2012,   [they]
            attempted   to    file   a    Complaint    for
            Grandparent Visitation with the Superior
            Court of New Jersey, Chancery Division,,
            Family Part . . .    [which] was rejected by
            the Court because a form complaint was
            required.          Thereafter,      Plaintiffs
            resubmitted the required Verified Complaint
            form, however, Plaintiffs also attached the
            more detailed Complaint setting forth the
            factual allegations.      The Complaint was
            filed on August 7, 2012.



(continued)
refused to release any information or records from her
therapist.    The trial judge ultimately denied plaintiffs'
application despite making the lack of expert testimony a
critical part of his decision to dismiss plaintiffs' complaint
without the benefit of an evidentiary hearing.



                                         17                              A-2338-12T1
    The Family Part's decision to return plaintiffs' attorney-

drafted complaint, and demand that their counsel submit instead

a "check the box" form pleading, was precipitated by systemic

changes in the way cases that fall under the umbrella category

of "non-dissolution" are processed by the Family Part.                                  This sea

change in the processing of non-dissolution cases at the trial

level   came       about      as   the        organic    byproduct      of    Supreme       Court

committees         comprised        of     family       law    attorneys,         Family      Part

judges,      and    dedicated           and    concerned      members        of   the    general

public.      Despite their best efforts and inclusive approach, it

appears grandparent visitation cases do not fit squarely into

the revisions that were ultimately adopted to better service the

large   majority         of   cases       denoted       as    "non-dissolution"          or    "FD

Docket" cases.

        On    September        2,        2011,    Judge       Glenn     A.    Grant,       Acting

Administrative Director of the Courts, issued Directive 08-11 to

supplement         and    revise         the     procedures       for    processing           non-

dissolution         matters        in     the     Family       Part.7         The    revisions

implemented by Directive 08-11 were approved by the Judicial

7
  Directive 08-11 is available to the public on the judiciary's
website. www.judiciary.state.nj.us/directive/2011/dir_08_11.pdf.
(last visited December 17, 2013).    Furthermore, administrative
directives have the force of law. S.M. v. K.M, ____ N.J. Super.
_____, _____ (App. Div. 2013) (slip op at n. 2) (citing State v.
Morales, 390 N.J. Super. 470, 472 (App. Div. 2007)).




                                                 18                                     A-2338-12T1
Council8, as originally recommended by the Conferences of Family

Part Presiding Judges and Family Division Managers.

    Directive 08-11 provides a state-wide uniform system for

processing cases falling under the general purview of the "non-

dissolution docket," also known as the "FD Docket."                   As Judge

Grant explained in his memorandum to Assignment Judges, Family

Part Presiding Judges, Trial Court Administrators, and Family

Division Managers:

               The Non-Dissolution docket provides relief
               to never married parents seeking custody,
               parenting time, paternity, child support and
               medical support. It also serves couples
               seeking certain reliefs, such as financial
               support without dissolution of their union.
               Additionally,   the   Non-Dissolution  docket
               includes    non-parent    relatives   seeking
               custody, child support and/or visitation
               regarding minor children. Self-represented
               litigants comprise the majority of those
               filing   in   the   Non-Dissolution   docket.
               (Emphasis added).

    Of     particular     importance    here,   Directive    08-11    requires

Family    Division    intake   staff    to   process   all   non-dissolution

cases    "as    summary   actions,   with    additional   discovery    at    the

discretion of the judge."            It also requires litigants in non-

8
  The Judicial Council is the governing body of the judiciary.
Chaired by and ultimately answerable to the Chief Justice, the
Council consists of the Assignment Judges from all of the
vicinages, the Presiding Judge for Administration of the
Appellate Division, the Administrative Director of the Courts,
and the Chairs of the Conferences of Presiding Judges for the
Civil, Criminal, Family, and General Equity Divisions.



                                       19                              A-2338-12T1
dissolution       matters    to    file     their      initial    complaint        using

standardized      complaint       forms     approved     by    the     Administrative

Office of the Courts, and incorporated as an appendix item to

Directive 08-11.        The directive did not expressly distinguish

between the litigant who files pro se and one who is represented

by counsel, nor did it provide any dispensation or exemption to

cases such as this one, where the pleading was prepared and

filed by an attorney.         As Judge Grant noted in his memorandum to

the vicinages, the revisions were predicated on the reality that

"[s]elf-represented         litigants     comprise       the    majority     of    those

filing in the Non-Dissolution docket."

    Even      a    cursory     review       of     the   standardized           Verified

Complaint     form    required      by    Directive       08-11       reveals     it   is

intended to apply primarily to cases involving disputes between

unmarried     individuals         seeking      child     support,       court-ordered

custody, and/or parenting time.9                 The revisions are intended to

provide   these      self-represented          litigants       with    a   consistent,



9
  Although less likely, married individuals may also use the
standardized Verified Complaint form to file an FD docket action
to obtain spousal and child support, and even court-ordered
parenting time.   The traditional FM matrimonial action is only
required when the parties seek dissolution of the marriage as
the principal form of relief.        In the FM docketed case,
equitable distribution, spousal and child support, custody, and
parenting   time  are   collateral  issues   arising  from   the
dissolution of the marriage.



                                          20                                    A-2338-12T1
statewide means of accessing the Family Part.                   As better stated

by Judge Grant:

             Efficient    methods    for    processing   Non-
             Dissolution    cases    are   crucial   to   the
             operation   of    the   court    and  to   court
             customers seeking relief under this docket
             type.     Having      standardized     statewide
             practices enables all court customers to
             have a clear and consistent understanding
             and a defined process for the resolution of
             disputes that fall under this docket type.

       The only reference to grandparent visitation actions in the

model Verified Complaint is found on page two, under a checkbox

with the subheading: "Establish or Modify Visitation Rights."

This   subheading      is   further     divided      into   three     subcategories

described    as    "Parenting    time;       Grandparent      Time;    and    Sibling

Time."      Each of these subcategories is accompanied by its own

checkbox.         After the litigant checks the appropriate box, the

form provides three lines for the presumably pro se litigant to

elaborate on the reasons for the relief requested.                           The last

page   of   the    model    complaint    is   left    blank    for    the    putative

plaintiff     to    provide    any     "additional      information."            Here,

plaintiffs' counsel attached a copy of his initially rejected

complaint,     which       consisted    of    fifty     individually         numbered

paragraphs describing in great detail the factual basis for the

relief requested.




                                         21                                   A-2338-12T1
    The    next   critical    part   of     the    revisions     reflected        in

Directive 08-11 concerns how the Family Part should process or

manage    non-dissolution    cases    once        the    complaint        has   been

accepted for filing.        As a general proposition, the directive

reaffirms that all non-dissolution cases should be processed as

summary   actions.     Although      this    classification          is    arguably

mandated by Rule 5:4-4, the directive reemphasizes this aspect

of how this case-type should be managed by Family Part judges.

    Rule 5:4-4(a) provides, in relevant part, as follows:

           Family Part summary actions shall include
           all non-dissolution initial complaints as
           well as applications for post-dispositional
           relief, applications for post-dispositional
           relief under the Prevention of Domestic
           Violence   Act,   and    all   kinship    legal
           guardianship actions.        Applications for
           post-dispositional    relief   shall    replace
           motion practice in Family Part summary
           actions.   The court in its discretion, or
           upon application of either party, may expand
           discovery,   enter    an    appropriate    case
           management order, or conduct a plenary
           hearing on any matter. (Emphasis added.)

    Syllogistically,     since    grandparent           visitation    complaints

under N.J.S.A. 9:2-7 are docketed as FD non-dissolution actions,

and since under the expansive language of Rule 5:4-4 "summary

actions shall include all non-dissolution initial complaints,"

by force of logic grandparent visitation suits must be treated

as summary actions.      (Emphasis added).              Traditionally, summary




                                     22                                    A-2338-12T1
actions are expedited proceedings governed by Rule 4:67-1. The

summary nature of the action is intended

          to   accomplish  the   salutary   purpose   of
          swiftly and effectively disposing of matters
          which lend themselves to summary treatment
          while at the same time giving the defendant
          an opportunity to be heard at the time
          plaintiff makes his application on the
          question    of  whether    or   not    summary
          disposition is appropriate.

          [Washington Commons, LLC v. City of Jersey
          City, 416 N.J. Super. 555, 564 (App. Div.
          2010), certif. denied, 205 N.J. 318 (2011),
          (quoting   Pressler & Verniero, Current N.J.
          Court   Rules,   comment  1  on   R.  4:67-1
          (2014)).]

    Summary actions in the Family Part are ordinarily tried

without the benefits of discovery.      R. 5:5-1.    However, even in

summary actions, the trial court has the discretion to authorize

discovery for good cause shown, Depos v. Depos, 307 N.J. Super.

396, 400 (Ch. Div. 1997); see also R. 5:5-1(d), or to protect a

party's due process rights, H.E.S. v. J.C.S., 175 N.J. 309, 324

(2003).   Finally, and particularly relevant here, Rule 5:4-4(a)

expressly empowers the trial court with the discretion to order

discovery on the court's motion, or "upon application of either

party, . . .    expand discovery, [or] enter an appropriate case

management order, or conduct a plenary hearing on any matter."

    Against    this   regulatory   backdrop,   we   now   hold   that     a

complaint seeking grandparent visitation as the principal form




                                   23                            A-2338-12T1
of relief should not be automatically treated by the Family Part

as    a    summary     action    requiring      expedited    resolution,         merely

because it bears an FD docket number.                As this case illustrates,

such       a   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.

          As a matter of sound principles of judicial case management

and    consistent        with   rudimentary      notions    of    due    process,        a

verified complaint prepared by an attorney, seeking grandparent

visitation as the only form of relief, should not be rejected by

the Family Part as facially deficient for filing, merely because

it     was     not   presented    using     a   standardized      form     complaint

intended to be used primarily by pro se litigants as a means of

facilitating their access to the court.                    Stated differently, a

litigant should not be penalized for retaining an experienced

family law attorney to present their case to the court in the

form of a professionally drafted pleading.

          As a matter of basic respect to the legal profession, we

must operate under the presumption that a complaint prepared by

an attorney contains a far more comprehensive presentation of

the    facts     and   legal     principles     involved     in   a     case    than     a

standardized form document crafted to identify, in a generic




                                          24                                    A-2338-12T1
fashion, the nature of the family action at issue by having a

pro se litigant put a checkmark in or write a line across the

box next to the subcategory "grandparent visitation."                                 At the

very least, an attorney-drafted pleading should be treated no

differently than one prepared by a pro se litigant.

       Unfortunately,     what    occurred        here       demonstrates       that,     at

least at the time and in the vicinage this case was filed,

attorney-prepared complaints were routinely rejected as a matter

of   policy.      Compounding      this      problem,        a    complaint     prepared,

filed, and signed by an attorney, who listed the address of his

law office as the place where all communications from the court

should    be    sent,   was   rejected       by   the    Family      Part      through    an

automated      form-letter      sent    directly        to       plaintiffs'     home     in

Florida.

       The     form-letter      informed       plaintiffs          that     "[e]ffective

September 1, 2011 the Administrative Office of the Courts issued

a    Directive    which   promulgates        the    revised         filing     and     post-

dispositional      procedures     for     the     Non-Dissolution           (FD)      Docket

type."    (Emphasis     added).        The     letter    continued        by    apprising

plaintiffs       that   their     "Non-Dissolution               Complaint/Application

(FD)     and/or    Non-Dissolution           Motion/Modification               (FD)     with

supporting papers have been received but have not been filed

with the Family Division for the reasons(s) identified below."




                                          25                                       A-2338-12T1
    The      form-letter       then    lists       six    unnumbered       checkboxes

identifying categories or grounds for rejection of plaintiffs'

attorney-drafted pleading.            Here, three boxes were checked with

an "X."     The first directed plaintiffs (not their attorney) to

"resubmit your Application and/or Modification on the revised

forms."    It directed plaintiffs to "retrieve" the forms from the

New Jersey Judiciary website; the second checked box informed

plaintiffs       that    they     "had      not      included       the        completed

Confidential Litigant Information Sheet," which apparently was

attached to the letter; and the third box apprised plaintiffs

that "Effective September 1, 2011," the vicinage Family Court

would no longer accept motions in FD actions.

    The     form-letter      concluded        by   notifying       plaintiffs       that

"[i]n accordance with R. 1:5-6(c) if the corrected paperwork

and/or documents are submitted to the court within ten 10 days

after the date of this notice, original filing date will be

preserved."       In this case, the filing date was July 17, 2012.

    This approach is inappropriate on several levels.                          First, a

default robotic rejection of complaints filed in the Family Part

carries    an    unacceptably     high     risk    of    producing       the    type   of

insensitive,       arbitrary     outcome      that      occurred    in    this     case.

Second, the document used convoluted, needlessly bureaucratic

language        that    served    only      to       undermine      the        "customer




                                         26                                     A-2338-12T1
friendly/greater     access   to   the     court"   policy   that    was   the

foundation for the revisions to Directive 08-11.             This can only

frustrate the litigant who receives this letter and increase the

level of alienation and distrust litigants feel about our court

system.    This "tail wagging the dog" outcome cannot stand.

    From the perspective of the bar, this approach displays a

disrespect for the work-product of professionally trained and

highly    experienced   family     law    attorneys.     A   professionally

prepared complaint is likely to identify with particularity the

salient factual and legal issues of the case, enabling the judge

to triage each case based on their level of complexity, and

distinguish those cases that need active case management from

those who may benefit from early judicial intervention.                    This

process is also far more likely to lead to possible amicable

settlements.     A   policy   that       automatically   rejects    attorney-

drafted pleadings ironically makes sound judicial management of

these kinds of cases harder.

    In Moriarty, the Court upheld the constitutionality of our

State's grandparent visitation law based on the principle that

"interference with parental autonomy will be tolerated only to

avoid harm to the health or welfare of a child."                    Moriarty,

supra, 177 N.J. at 115.       In reaching this conclusion, the Court

specifically rejected the best interest of the child standard as




                                     27                              A-2338-12T1
a basis to overcome the objections to grandparent visitation by

a fit custodial parent.     Id. at 116.

      Writing for the Court in Moriarty, Justice Long emphasized

           that a dispute between a fit custodial
           parent and the child's grandparent is not a
           contest between equals.

           . . . .

           Thus, in 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 can be expert or factual. For
           example, they may rely on the death of a
           parent or the breakup of the child's home
           through divorce or separation.      In fact,
           many of the fifty grandparent visitation
           statutes    specifically    recognize    the
           potential for harm when a parent has died or
           a family breakup has occurred and visitation
           is denied.   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. . . . The possibilities are
           as   varied    as  the   factual   scenarios
           presented.

           [Id.    at 116-117.    (Emphasis added).]

      Plaintiffs' cause of action is predicated on tracking the

Court's analysis in Moriarty and thereafter establishing: (1)

the existence of a close and prolonged relationship between Olga

and   plaintiffs   during   the   child's   formative   years;   (2)   the

animosity and hostility harbored by defendant against plaintiffs




                                    28                           A-2338-12T1
in   connection        with   Charles'          death;       (3)   the    death     of    Olga's

mother       quickly     followed         by     the        restriction      and     ultimate

termination      by     defendant         of     all     contact         between    Olga       and

plaintiffs; and (4) the emotional and psychological harm to Olga

if defendant is permitted to deny the child all contact from her

mother's side of the family, especially plaintiffs.

       Defendant stated in his certification to the trial court

that    he    considers       the       prospect       of     plaintiffs      remaining         in

contact with Olga to be not only against his daughter's best

interest, but highly dangerous to her psychological wellbeing.

The only way for plaintiffs to rebut defendant's presumptively

valid    objections,         is    to   provide        factual     testimonial        evidence

describing their past interactions with the child.                                 Plaintiffs

may also decide to present expert testimony as well, especially

as it relates to how the child's ability to cope with the death

of   her     mother    may    be    undermined          by    defendant's      decision          to

exclude plaintiffs from her life.

       Although Justice Long in Moriarty referred to "the death of

a parent or the breakup of the child's home through divorce or

separation"      as      scenarios         in     which       prohibiting          grandparent

visitation may be harmful to a child, we reject the notion that

these      abstract     references        can     be     reduced     to     self-contained,

watertight categories of harm, made available to a would be




                                                29                                       A-2338-12T1
plaintiff      merely    by   placing   a    checkmark       in    a   standardized

Verified Complaint form.           The dynamics of human interactions are

too   complex,    the    court's    parens    patriae       responsibilities       too

great,    plaintiffs'         statutory      rights     too        precious,       and

defendant's constitutional rights as a parent too important, to

reduce   the     trial   judge's     function   to    performing        a    prosaic,

perfunctory exercise.

      Thus, as previously noted, notwithstanding its FD docket

designation as a non-dissolution case, when a litigant brings an

action seeking grandparent visitation under N.J.S.A. 9:2-7.1,

either   using    the    standardized       complaint       form   approved     under

Directive 08-11 or through an attorney-prepared pleading, the

vicinage Family Part Division Manager shall designate the matter

as a contested case after joinder of issue and refer the case

for   individualized      case     management    by     a    Family     Part    judge

selected by the vicinage Presiding Judge of Family.                         The judge

shall review the pleadings and determine whether active case

management is needed.

      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




                                        30                                   A-2338-12T1
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 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.




                                    31                                A-2338-12T1
     This    list    is    by    no    means       exhaustive      of    the    myriad   of

potential case management issues that may arise in any given

case.      The    need    and    degree      of    judicial      supervision      is   left

entirely to the discretion of the trial judge.                           As a practical

matter, the court may direct plaintiff's counsel to prepare a

draft     case    management      order       for       the   court's     review.        If

plaintiff is appearing pro se, the court, or in the court's

discretion, defense counsel, if available, shall prepare a case

management       order    that    reflects        the    outcome    of    the    matters,

issues,     and    decisions       discussed         and      decided     at    the    case

management conference.

     Although we are satisfied that the burden of proof imposed

on   plaintiffs      in    grandparent            visitation      cases    makes       these

matters ill-suited for traditional summary action designation,

the trial court should nevertheless manage these cases with a

sense of urgency and be especially mindful that the nature of

litigation is per se extremely stressful as well as economically

disruptive.       Family-related disputes are even more stressful and

emotionally       debilitating        than    other      types    of    civil    disputes

because they often touch the very core of our most intimate

experiences, force us to confront our most difficult moments,

and require us to reveal the most private details of our lives.

As this case shows, grandparent visitation disputes also compel




                                             32                                   A-2338-12T1
those involved to relive painful memories, with the hope that

those of us entrusted with the awesome power to decide their

fate and the fate of their beloved and vulnerable children will

do     so   fairly,     expeditiously,         compassionately,         and    most

importantly, according to law.

                                        III

                             TRIAL COURT'S RULING

       The first communication plaintiffs received from the court

after joinder of issue was a notice, again sent directly to

plaintiffs at their residence in Florida, summoning them to a

"visitation rights hearing."            The generic nature of the notice

identified plaintiffs' cause of action as a "Parenting Time/

Visitation Rights Counsel Fees" complaint.                  The notice directed

plaintiffs to appear before the trial judge on September 26,

2012 at 9:30 a.m. and bring "a copy of this notice" with them.

Despite their counsel's prior appearance in the case, plaintiffs

were   also   told    that   they     "may    bring   an    attorney    with   you,

although the attorney is not required."

       Plaintiffs' counsel wrote a letter to the judge named in

the notice requesting an adjournment of the September 26, 2012

hearing     because    the     date     conflicted         with   his   religious

observance.     Counsel also requested that the court make the

rescheduled hearing date "firm," because plaintiffs resided in




                                        33                                A-2338-12T1
Florida and it would be a hardship for them to travel to New

Jersey only to discover that the hearing had been adjourned at

the last minute.

     By letter dated September 13, 2012, the trial judge granted

plaintiffs'     counsel    adjournment       request,      rescheduling        the

hearing to October 10, 2012, at 1:30 p.m.10                     The court also

directed that defendant file "an Answer or any other form of

responsive pleading by September 24, 2012.                All parties should

submit a pretrial memorandum to the court by October 1, 2012.                     A

copy of the pretrial memorandum is to be served on all other

parties in the case."

     As    documented     in   a    certification     plaintiffs'        counsel

submitted to the trial court in support of plaintiffs' motion

for reconsideration, and as counsel emphasized to us at oral

argument   in   this   appeal,     upon    receipt   of   the    trial   court's

letter, he called the judge directly

           asking what the purpose of the pre-trial
           memorandum was and what type of hearing was
           going to be conducted on October 10, 2012.
           Counsel was again advised that the matter
           would proceed to a hearing on that date and
           once again advised that Plaintiffs could
           either appear in person or their testimony
           would be taken over the phone.   At no time
           was it indicated, by anyone from the court,
           that this initial scheduled matter was a

10
   In a notice dated September 14, 2012, the Family Division
Manager confirmed that the hearing had been rescheduled.



                                      34                                 A-2338-12T1
            pre-trial conference         or    a    case    management
            conference.[11]

      As directed by the trial court, defendant filed his answer

to plaintiffs' complaint through counsel on September 24, 2012.

On that same day defendant also filed a motion to dismiss under

Rule 4:6-2, sought an award of counsel fees, and despite the

fact that this was not a probate matter, requested an accounting

of the Estate of K.K.             Plaintiffs' counsel filed responding

certifications and a legal memorandum.

      The parties and their respective attorneys appeared before

the   court   on    October    10,    2012.        According          to   plaintiffs'

counsel, this was the first time the trial judge advised the

parties that the matter was scheduled as "a Case Management

Conference."         Neither   party      filed      the        pretrial     memoranda

required    under    Rule   4:25-1.      According         to    the   certification

submitted     by    plaintiffs'      counsel   as    part        of    the   appellate

record,

            the parties discussed resolution of the
            matter which did not appear possible.       I
            also asked that the court order that the
            granddaughter    be  examined   by a    court
            appointed     psychologist    so   that     a
            determination could be made as to the impact

11
  In his certification to the trial court, plaintiffs' counsel
acknowledged that the trial judge's clerk told him when he
telephoned the court that he should file "a pre-trial memo
pursuant to R. 4:25."     Rule 4:25-1 sets out the procedures
governing pretrial conferences in the Civil Division.



                                        35                                    A-2338-12T1
         of terminating all visitation and contact
         with the grandparents who helped raise her.
         Defendant objected and the court indicated
         it would not order that, at this time.

         Because the court did not have the papers to
         rule on the Motion [to dismiss filed by
         defendant] it was suggested that we schedule
         the matter for a hearing date and the
         parties agreed on the date of November 14,
         2012.   The court further indicated it would
         rule on the papers on the Motion and than
         [sic] we would have a hearing.       In that
         conversation I asked the court if an expert
         was needed, since the expert would not have
         met or spoken to [Olga.]    Also, the expert
         would not have any records to review.    The
         response was that if was a decision I would
         have to make prior to the hearing.

         When we left that conference it was rather
         clear to me that the court was simply going
         to review and deny the Motion and that the
         parties would appear in court on November
         14, 2012.    Instead, the court entered its
         Order dated October 17, 2012 granting the
         Motion to Dismiss Plaintiffs' Complaint and
         supported that decision by a two page
         Opinion that was attached to the Order.

    By   letter     dated   October     17,   2012,    the   trial      judge

transmitted   his   order   and   memorandum    of    opinion   dismissing

plaintiffs' complaint based on defendant's Rule 4:6-2 motion.

Despite the numerous and extensive material issues of fact in

dispute we have described at length here, the trial judge began

his analysis by finding that "[t]he facts are not in dispute."

The judge appears to have based this conclusion by focusing on

three specific events: (1) the death of the child's mother in




                                   36                                A-2338-12T1
April 2011; (2) the lack of personal contact between the child

and plaintiffs since the mother's funeral; and (3) defendant's

decision to prohibit telephone contacts between the child and

plaintiffs commencing in January 2012.

    After citing the standard for relief established by our

Supreme   Court    in   Moriarty     and    noting   the   holdings   in   three

published     opinions       from    this    court    that   have     addressed

grandparent visitation actions arising from a variety of factual

settings, the motion judge found that "plaintiffs' pleadings and

proofs    establish     no    more    than    a   general,    unsubstantiated

allegation of harm."          Based on a truncated recitation of the

material facts, and noting plaintiffs' failure to produce expert

testimony to substantiate or bolster their claims of harm to

Olga, the motion judge believed himself "obligated to dismiss

the Complaint filed by the plaintiffs."               The court also denied

plaintiffs' motion for reconsideration.

                                       IV

                             SUBSTANTIVE ANALYSIS

    Because the trial court dismissed plaintiffs' complaint as

a matter of law, our review of the court's decision is de novo.

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

Div. 2006).       Furthermore, "[a] trial court's interpretation of

the law and the legal consequences that flow from established




                                       37                              A-2338-12T1
facts are not entitled to any special deference."                       Manalapan

Realty,   L.P.   v.    Tp.   Comm.   of     Manalapan,     140   N.J.   366,   378

(1995).

    Since at least 2000, every state in the Union has given

grandparents     the   statutory     right    to    have   contact   with   their

grandchildren.     Troxel v. Granville, 530 U.S. 57, 73-74 n. 1 120

S. Ct. 2054, 2064 n. 1 147 L. Ed. 2d 49, 61 n. 1 (2000).                       Our

own Supreme Court has acknowledged that the importance of the

grandparent-grandchild        relationship         has   been    "confirmed"    by

psychiatrists and social scientists that have studied the field.

           The     emotional      attachments      between
           grandparents and grandchildren have been
           described as unique in that the relationship
           is   exempt    from    the    psycho-emotional
           intensity and responsibility that exists in
           parent/child    relationships.     The    love,
           nurturance,      and      acceptance      which
           grandchildren     have     found     in     the
           grandparent/grandchild relationship confers
           a natural form of social immunity on
           children that they cannot get from any other
           person or institution.

           [Moriarty, supra, 177 N.J. at 97 (internal
           citations and quotation marks omitted).]

    The Legislature in our State has codified the rights of

grandparents to have contacts with their grandchildren under the

following provisions:




                                       38                                A-2338-12T1
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.

c. With regard to any application made
pursuant to this section, it shall be prima



                      39                           A-2338-12T1
              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.

              [N.J.S.A. 9:2-7.1.12]

      Last amended in 1993, the factors outlined in N.J.S.A. 9:2-

7.1(b) were intended to provide a mechanism for resolving the

tension between a parent's constitutional right to autonomy over

his   or    her   child   and   the   State's    implicit     public       policy    of

fostering      and   encouraging      contacts    between     grandparents          and

their grandchildren.        In re Adoption of a Child by W.P. & M.P.,

163 N.J. 158, 165-66 (2000).                 To accomplish this Legislative

goal, when grandparents file a complaint seeking contacts with

their      grandchildren   under      the    statute,   the   trial    court     must

conduct       a   fact-sensitive        inquiry     addressing         the      seven

particularized       factors    in    N.J.S.A.   9:2-7.1(b)(1)        to    -(7),    as

12
   On September 27, 2012, General Assembly Bill A3297 was
introduced to repeal N.J.S.A. 9:2-7.1.    A3297 was referred to
the General Assembly Judiciary Committee, which did not take any
action on this Bill before the end of the legislative session.
On June 20, 2013, the State Senate passed S2975, a Bill to
codify the Supreme Court's holding in Moriarty, supra, 177 N.J.
at 117, and establish a series of statutory factors for the
trial court to consider in determining whether grandparent
visitation is in the best interest of the child.       S2975 was
formally received by the General Assembly on June 20, 2013, and
referred to the General Assembly Judiciary Committee for
consideration as General Assembly Bill A2945.    On November 25,
2013, the General Assembly Judiciary Committee reported out
A2945 as amended and recommended its passage.        The General
Assembly did not vote on A2945 before the end of this
legislative session.



                                            40                               A-2338-12T1
well as the "any other factor" failsafe category in N.J.S.A.

9:2-7.1(b)(8).   Moriarty, supra, 177 N.J. at 100.

    In going about this analysis, the trial judge must keep in

mind Justice Long's admonition in Moriarty:

         Because the Grandparent Visitation Statute
         is an incursion on a fundamental right (the
         right to parental autonomy), under [Watkins
         v. Nelson, 163 N.J. 235 (2000)], it is
         subject to strict scrutiny and must be
         narrowly tailored to advance a compelling
         state interest. Our prior jurisprudence
         establishes clearly that 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
         is the avoidance of harm to the child. When
         no harm threatens a child's welfare, the
         State   lacks    a  sufficiently   compelling
         justification for the infringement on the
         fundamental right of parents to raise their
         children as they see fit.      However, when
         harm is proved and the presumption in favor
         of a fit parent's decision making is
         overcome, the court must decide the issue of
         an appropriate visitation schedule based on
         the child's best interests.

         [Id. at 114-115.   (Emphasis added).]

    Thus, the trial judge must first conduct a fact-sensitive

analysis 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.    Once a prima facie case

has been established, the court must then determine whether the

grandparents have proven, by a preponderance of the evidence,



                                41                       A-2338-12T1
that visitation is necessary to avoid harm to the child.                   Id. at

117.      Although noted earlier, it is worth emphasizing that the

grandparents can meet this burden by presenting either factual

or expert testimony.          Ibid.      In determining the question of

harm, the court "may rely on the death of a parent or the

breakup    of   the   child's   home    through      divorce    or    separation."

Ibid.

       With this analytical paradigm in mind, we turn to the trial

court's decision in this case.           We are compelled to reverse the

trial court's decision because it did not apply the statutory

factors    in   N.J.S.A.     9:2-7.1,   nor    conduct    the    fact-sensitive

analysis mandated by the Court in Moriarty.                   As the procedural

history shows, 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."                      Once

so designated, the system inexorably channeled the case to the

designated judge, who likewise summarily disposed of the case

despite plaintiffs' counsel's best efforts to convince the court

of the need to conduct the kind of fact-sensitive analysis the

Supreme Court mandated in Moriarty.

       In the interest of clarity, we will briefly discuss and

distinguish the cases relied on by the trial court.                    In Daniels

v.   Daniels,   381   N.J.    Super.    286,   288    (App.    Div.    2005),   the




                                        42                                A-2338-12T1
grandmother sought visitation under N.J.S.A. 9:2-7.1, alleging

she    had   a     strong       and    loving     relationship     with     her       minor

grandchildren.          In sharp contrast to the key facts confronted by

the trial court here, the trial court in Daniels granted the

defendants'        motion       to    dismiss     because   the    parents       of    the

children     "were      an     'intact    family'    and    were   united    in       their

opposition to letting the grandmother have visitation with their

children."       Ibid.

       In affirming the trial court, we rejected the plaintiff's

attack on the trial court's holding as constituting a per se bar

of     all   grandparent         visitation       actions    involving      an     intact

family.       We       upheld    the     trial    court's   decision      because      the

plaintiff        did     not     allege     facts     showing      that     denial      of

grandparent visitation would harm the children.                     Id. at 292-293.

With respect to the need for discovery, we emphasized that in

both the trial court and at the appellate level the plaintiff

failed "to specify any concrete harm the children are suffering,

or will suffer, by virtue of the lack of visitation."                             Id. at

293.

       Here again the salient facts are far different.                        Olga not

only had a long and close relationship with her grandparents

during her formative years, but she actually resided with her

grandparents for an extensive period of time after her parents




                                             43                                  A-2338-12T1
divorced and after the tragic death of her younger sibling.

Olga's association with her grandparents came to an abrupt end

as     a    result    of     her     mother's      death,        a     traumatic      event

specifically used by the Court in Moriarty as an example to

illustrate        where    the    relief    requested       by       plaintiffs    may    be

warranted.

       Rente v. Rente, 390 N.J. Super. 487 (App. Div. 2007), was

another case cited by the trial court here in support of its

decision to dismiss plaintiffs' complaint without a hearing or

discovery.         Once again, the facts are inapposite to the ruling

made by the court.           The defendant in Rente was the mother of a

four-year-old boy who had obtained a final restraining order

(FRO)      against     her       husband,    the       boy's     father,     under       the

Prevention of Domestic Violence Act.                      Id. at 490.         Under the

terms of the FRO, the defendant/mother had sole physical custody

of the child and the father was granted supervised parenting

time       "on     alternative       weekends,         monitored        by    plaintiffs

[/paternal grandparents.]"             Ibid.

       The       plaintiff       brought    an     action        seeking     grandparent

visitation with the boy.               Her only claim for such relief was

based on the paternal grandmother's claim that she had babysat

her        two-year-old          grandson        "on     occasions"          when        the

defendant/mother was unable to care for him due to work schedule




                                            44                                     A-2338-12T1
or illness.          The paternal grandmother estimated this occurred

approximately        twenty-five     times     the    previous         year,   and    about

four times in the year she filed the complaint for visitation.

Id. at 491.

       On these facts, the Family Part conducted a trial in which

the grandmother testified describing the activities she engaged

in with the boy during the times she was babysitting him.                              The

grandfather’s only claim for visitation was the fact that the

boy   was      his   grandson.      Ibid.          The    defendant       disputed      the

grandmother's          testimony    concerning           the     frequency       of    the

babysitting sessions.            It was undisputed that the plaintiffs had

not     seen     their     two-year-old      grandson          since     the   defendant

obtained the FRO against the boy's father.                     Ibid.

       Despite the lack of any evidence showing the child would be

harmed if the plaintiffs were precluded from having any contacts

with him, the trial court granted the relief requested for a

period of one month.             The court's decision was based, in large

part, on the defendant's decision to consent to the visitation.

Id. at 492.            We noted, however, that the defendant objected to

the scope of the visitation schedule ordered by the trial court.

Ibid.       During the time this temporary visitation schedule was

in    place,     the     court   appointed     a     psychologist        to    perform    a

psychological evaluation.           Ibid.




                                          45                                     A-2338-12T1
      At    the    conclusion    of     the    one-month    temporary       visitation

period,     the    psychologist    recommended       that    the    court    continue

grandparent visitation.            The psychologist found "both natural

parents have significant adjustment problems that impair their

parenting ability[.]"           Ibid.         In his opinion, the grandparents

represented the only stable influence in the child's life at

time.       Overruling the defendant's objection, the trial court

admitted the psychologist's report into evidence and granted the

plaintiffs unsupervised visitation on alternate weekends.                          Ibid.

      After reviewing the relevant legal principles established

by   the    Court   in     Moriarty,     we    reversed,    holding       that     "[t]he

grandmother's       testimony     of     babysitting       for    her     two-year-old

grandson on occasion failed to establish even a prima facie case

of the requisite harm under Moriarty to rebut the presumption in

favor      of   parental    decision-making        that     would       necessitate       a

psychological evaluation and hearing."               Id.     at 494.

      We    also    concluded     the    trial    court     committed       reversible

error      by     admitting     the      psychologist's          report     over       the

defendant's objection, without offering her an opportunity to

obtain her own expert, providing her with a copy of the report

to review prior to the hearing, and giving her a reasonable

opportunity to depose the psychologist or making him subject to

cross-examination, in violation of Rule 5:3-3.                      Id. at 495.         We




                                          46                                     A-2338-12T1
also    found    the     information       in    the   expert's     report     was

insufficient to establish a prima facie case of harm to the

child under Moriarty.          Ibid.       The psychologist's analysis was

essentially a net opinion not based on any meaningful contacts

with the parties, and applied a "best interest of the child"

standard instead of the relevant "harm to the child" standard

under Moriarty.        Ibid.

       Thus, Rente reinforces our holding here that, depending on

the    circumstances      of    the      case,   discovery    in     grandparent

visitation cases is not only permissible under Moriarty, but

indispensable in reaching a sustainable outcome.                   Rente is thus

not only procedurally distinguishable from this case, it also

reinforces the need for discovery given the circumstances of the

controversy before the court.

       Mizrahi v. Cannon, 375 N.J. Super. 221 (App. Div. 2005),

was the last case relied on by the trial court to support its

decision to dismiss plaintiffs' complaint without a hearing.                    As

was    the    case     with    Daniels     and    Rente,    Mizrahi     is    both

procedurally distinguishable and factually inapplicable to the

issues we confront here.                The plaintiffs in Mizrahi were the

paternal     grandparents      of   a   seven-year-old     girl   who   had   been

residing with her maternal great-aunt after the death of the

child's mother.        Id. at 223.        The child's father was estranged




                                          47                             A-2338-12T1
from    her   based       on    his    serious        emotional,        psychological,        and

substance abuse problems.                 Ibid.         In fact, the child was three

months    old      when    her    father     physically            assaulted      her    mother,

causing      her   to     obtain      a   domestic          violence      restraining       order

against him.        Ibid.

       The record showed that despite this abuse, the plaintiffs

remained      loyal       to   their      son.         In    addition      to    the    conflict

created by this loyalty, there were also tensions about the

child's religion because the mother was a devout Catholic and

the plaintiffs/paternal grandparents were Jewish.                                 Id. at 224.

The child was only two-years-old when her mother was diagnosed

with Stage III cervical cancer.                        Ibid.         The defendants were

given legal and physical custody of the child when her mother

died three years later.               Id. at 225.

       The    plaintiffs         testified        at    trial      in     support      of   their

complaint       seeking         visitation.             According         to     the    paternal

grandmother, she saw the child three times the year before her

mother died.         There was no testimony that the child showed any

reaction to her grandmother's visits.                             Ibid.         The defendants

testified that the child was reluctant to see the plaintiffs.

Id. at 226.             She was fearful and anxious after the visits.

Ibid.         After       the    third      visit,          the   defendants       decided      to

terminate the visitations in the child's best interest.                                 Ibid.




                                                 48                                     A-2338-12T1
       The   defendants   adopted    the      child     three   years    after   her

mother's     death.       The    trial     court      granted   the     plaintiffs'

request      for   visitation.      We    reversed,       noting   that     despite

acknowledging the standard articulated by the Court in Moriarty,

the trial court applied a "best interest of the child" standard

in awarding visitation rights to the plaintiffs.                      Id. at 232.

We noted the absence of any

              evidence during the trial that [the child]
              would experience guilt or inadequacy if
              visitation did not occur. Nor was there any
              evidence that she could experience confusion
              over the fact that she saw her maternal
              grandmother . . ., but not [the plaintiffs].
              There was no evidence that as [the child]
              grew older, she would not be able to learn
              about Jewish heritage and tradition. There
              was no evidence that [the child] will
              experience a void in her life if she does
              not visit with [the plaintiffs] or that, as
              she got older, she would experience feelings
              of rejection.    Nor was there any evidence
              that [the child] would suffer economically;
              there was no showing that [the defendants]
              are unable to meet [the child's] needs.

              [Id. at 234.]

       Here, the trial court misapplied the central thesis of our

holding in Mizrahi by dismissing plaintiffs' complaint at the

early stages of the litigation process.                 Grandparents seeking to

overcome a presumptively valid parental objection to visitation

must    be    afforded    the    opportunity       to    gather    the     evidence

necessary to meet this burden of proof.                    The grandparents in




                                         49                                A-2338-12T1
Mizrahi were given that opportunity by the trial court.                                       In

short, the trial court here failed to appreciate the procedural

and     factual      characteristics         of       Mizrahi,     and    as       a       result

incorrectly       denied       plaintiffs       the   opportunity        to   establish         a

basis for the relief requested.

       With this analysis as a backdrop, we return to Moriarty for

guidance.       Distilled to its essence, the Court in Moriarty held

that:    (1)    in     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;     (2)    most    of    the   grandparents         visitation           statutes

adopted     throughout          the    country        specifically        recognize          the

potential for harm when a parent has died or a family breakup

has occurred and visitation is denied; (3) although harm can be

established       by     either       factual     testimony       from    a    witness        or

opinion    testimony       by     an    expert,       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; and

(4) if the trial court finds the grandparents have established

the potential for harm by a preponderance of the evidence, the

presumption in favor of parental decision making will be deemed

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




                                             50                                        A-2338-12T1
    Once the presumption in favor of the parent is overcome,

the parent is required to offer the grandparents a reasonable

visitation schedule.        Ibid.      If the grandparents accept the

visitation schedule offered by the parent, the trial court will

enter an order memorializing the agreement, thus reducing it to

an enforceable judgment.          Ibid.     If the grandparents are not

satisfied with the proposed visitation schedule, the trial court

must assess the reasonableness of the proposal and thereafter

approve   a   schedule   that     it   finds      is   in    the   child's    best

interest, based on the application of the statutory factors in

N.J.S.A. 9:2-7.1.    Id. at 117-118.

                                       V

                                  CONCLUSION

    We will now apply the legal principles we have discussed to

the facts of this case.         As a starting point, pursuant to both

the court’s parens patriae responsibility and the discretionary

authority conferred to it in Rule 5:4-4(a), it is clear to us

that this case falls within the class of complex litigation that

requires the trial court to conduct a case management conference

through   which   counsel   can     alert   the    court     of    the   discovery

necessary to present the matter for trial.                  The case management

order derived from this conference should therefore describe the

nature and scope of discovery the court has authorized and set




                                       51                                 A-2338-12T1
reasonably         attainable       deadlines           for       responding         to

interrogatories,       producing      documents,    deposing       witnesses,       and

submitting expert reports, if any.                Any discovery must reflect

and ensure a proper balance between plaintiffs' right to gather

evidence in support of their application, defendant's right to

parental autonomy, and the child's welfare, including her right

to privacy.

     As previously noted, the common law did not recognize the

right of grandparents to interact with their grandchildren over

the objections of a fit parent.              Plaintiffs' cause of action is

therefore entirely grounded on the statutory factors adopted by

the Legislature in N.J.S.A. 9:2-7.1.                We are thus particularly

troubled by the trial court's failure to address the factors in

N.J.S.A. 9:2-7.1(b)(1) to -(8).              On remand, the court's ultimate

decision must reflect a fact-sensitive analysis addressing all

of   the    relevant      statutory    factors      in     N.J.S.A.     9:2-7.1(b).

Moriarty, supra, 177 N.J. at 100.

     However,      each    case   brings     to   the    court    its   own   set    of

unique challenges.          Here, how the parties interact with each

other and with Olga remains profoundly influenced by events that

preceded the death of the child's mother.                        Specifically, the

record     shows    defendant     harbors     a    great      resentment      against

plaintiffs stemming from the role they played in convincing the




                                        52                                    A-2338-12T1
matrimonial       judge      to    award        K.K.    physical      custody      of     the

children.       Furthermore, as the wrongful death action he brought

against plaintiffs shows, defendant holds plaintiffs responsible

for the untimely death of his son Charles.                          Thus on remand, in

deciding       whether     the    denial       of    grandparent      visitation        would

cause    harm    to    Olga,      the    trial      court    must   determine      to   what

extent defendant's resentment against plaintiffs prejudices his

parental judgment in this case, and how such an emotionally

driven    bias     may     negatively          affect      Olga's    psychological        and

emotional wellbeing.

    Given Olga's age, the court should also consider whether to

conduct an in camera interview as a means of ascertaining how

this turmoil has affected her thus far, and how the continued

enforcement       of       this     father-driven            estrangement     from        her

grandparents       may     affect       her    in    the    future.      Either      as    an

alternative       to   a    direct       interview      by    the    judge,   or     as    an

additional means of protecting the child's best interest, the

court should also consider appointing a guardian ad litem (GAL)

pursuant to Rule 5:8B.                  Because plaintiffs bear the burden of

rebutting       defendant's        presumptively           valid    objections     as     the

father    of    this     child,     it    is     entirely     appropriate     that      they

should be held responsible to pay the GAL's fees under Rule

5:8B(d) as part of the cost of the proceedings.                               See In re




                                               53                                  A-2338-12T1
Adoption of a Child by J.D.S. II, 353 N.J. Super. 378, 403-04,

(App. Div. 2002), certif. denied, 175 N.J. 432 (2003).

       We    conclude       our      analysis        by     noting       the      remarkable

similarities       between    the       allegations        raised       by    plaintiffs       in

this case and the prevailing factual account in Moriarty.                                      As

the Supreme Court's recitation of the Family Part's findings

indicates,        the   children        in   Moriarty       had     a    "very     extensive

relationship       with     their       grandparents,"       spending          "years     where

they were seeing the grandparents every other weekend."                                  Id. at

118.        The     Court     in     Moriarty        also       emphasized        that        the

relationship        between        the       children       and     the        mother        "was

significant in a different way because their mother had recently

died."      Id. at 119.

       It    is    undisputed        that     Olga      shared      a        household       with

plaintiffs for a number of years.                          According to plaintiffs,

their relationship with Olga continued to be a close one even

after they relocated to Florida.                     Olga's relationship with her

maternal     grandparents         was    also      significantly        affected        by   her

mother's     untimely       death.        The      Court   in     Moriarty       approvingly

quoted and adopted the trial court's "most critical findings,"

that because of the mother's death, "it is extremely important

that the children continue a bond with their mother's side of

the family."        Id. at 121.




                                              54                                    A-2338-12T1
    Although the trial court in Moriarty had the benefit of

expert testimony to support this finding, it was error for the

trial court here to use plaintiffs' failure to present expert

opinion in this regard as a basis to dismiss their complaint.

First,    the    trial   court    made     its    decision       here   based   on

defendant's Rule 4:6-2 motion, as supplemented by conflicting

certifications submitted by both sides of this dispute.                         The

court    was    therefore   obligated      to    apply    the     standards     for

deciding a motion for summary judgment under Rule 4:46-2(c).

Under this standard of review, the court was obligated to draw

reasonable inferences from the evidence viewed in the light most

favorable to plaintiffs.         Brill, supra, 142 N.J. at 540.

    As     expressly     authorized        by    the     Court    in    Moriarty,

plaintiffs were entitled to present their case without expert

testimony.      Id. at 117.      Even if the trial court concluded that

expert testimony was required here, given the procedural infancy

of the case, basic fairness demands that plaintiffs be given the

opportunity to retain such an expert.              In short, the dismissal

of plaintiffs' cause of action under these circumstances was

factually unwarranted and legally untenable.

    Reversed and remanded.          We do not retain jurisdiction.




                                      55                                 A-2338-12T1
