On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FD-14-414-04.
The opinion of the court was delivered by: S.L. Reisner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and S.L. Reisner.
Reargued October 28, 2005
Before Judges Coburn, Lisa and S.L. Reisner.
This case arises from a complaint in which plaintiff, Lois Daniels, sought visitation with her grandchildren pursuant to the Grandparent Visitation Statute (GVS), N.J.S.A. 9:2-7.1. The trial court granted defendants' motion to dismiss on the grounds that, because defendants, the parents of the grandchildren, were an "intact family" and were united in their opposition to letting the grandmother have visitation with their children, the GVS could not constitutionally be applied to force them to permit visitation by the plaintiff. We affirm the trial court's order dismissing the complaint, but on somewhat narrower grounds.
The complaint, filed February 13, 2004, recited that plaintiff had previously exercised "significant visitation with the minor children" and had a "strong and loving relationship" with them. The complaint further recited that "for reasons unknown to the Plaintiff" the defendants had refused to permit her to spend time with the grandchildren. The complaint did not allege that the children had suffered harm or would suffer harm by virtue of this lack of visitation from plaintiff. Nor did the complaint allege any unusual circumstances that would likely give rise to particular harm from denial of visitation.
For example, the complaint did not allege that plaintiff had acted as a substitute parent for an extended period of time while one or both of the biological parents had been incapacitated or absent. Nor did the complaint allege that either or both parents were unfit, or that the children had any unique circumstance which would cause them to be harmed if they did not visit with their grandparent.
On February 25, 2004, plaintiff filed a "Motion for Grandparent Visitation." In support of that motion, plaintiff submitted a lengthy certification, reciting her close and loving relationship with her two grandchildren (then ages six and three), her past repeated conflicts with defendants over her desire to have more time to visit with the grandchildren than they wanted her to have, and her anguish over her inability to see the grandchildren at all since August 2003. The certification asked the court to make a "best interests" determination with respect to plaintiff's visitation application and asserted, in general terms, that defendants' actions were "harming" the grandchildren. The certification offered no factual support for this general allegation of harm.
Defendants filed a motion on March 10, 2004, for a declaration that "the New Jersey Grandparent Visitation Statute, N.J.S.A. 9:2-7.1 [is] unconstitutional, both facially and as applied, under both the New Jersey Constitution and the Constitution of the United States." Their motion also asked the court to deny the visitation motion and to dismiss the complaint. The motion was supported by certifications from both defendants, detailing the long history of their contentious relationship with plaintiff, including her repeated attempts to interfere with the way they chose to raise their children. The certifications of all parties agreed that on August 28, 2003, there had been a serious "blow-up" between Donna Daniels and plaintiff, which occurred in the children's presence, and that this incident had been the catalyst for defendants' decision to cut off contact between plaintiff and the children. In their certifications, Donna and plaintiff each blamed the other for this incident.
On April 1, 2004, the trial court denied defendants' motion to dismiss without prejudice and ordered the parties to attempt to settle the case. When no settlement was forthcoming, the court heard oral argument on July 15, 2004, and granted the motion to dismiss. Because the court considered matters outside the pleadings, the motion was automatically converted to one for summary judgment. R. 4:6-2. As further discussed in this opinion, summary judgment was properly granted, because neither plaintiff's complaint nor her proofs raised claims constitutionally cognizable under the Grandparent Visitation Statute.
As originally enacted, the Grandparent Visitation Statute, N.J.S.A. 9:2-7.1, did not apply to "'intact families' (those not disrupted by death or divorce)." Moriarty v. Bradt, 177 N.J. 84, 99 (2003), cert. denied, 540 U.S. 1177, 124 S.Ct. 1408, 158 L.Ed. 2d 78 (2004). In 1993, the GVS was amended to extend visitation rights to grandparents even ...