B.C. VS. NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY(FD-10-101-17, HUNTERDON COUNTY AND STATEWIDE)(RECORD IMPOUNDED)
161 A.3d 125
N.J. Super. Ct. App. Div.2017Background
- B.C. and his wife, maternal grandparents, cared for four grandchildren in a licensed resource home during multiple Division placements; youngest three now with their mother, Albert (oldest) in an institution.
- In January–June 2016 the Division removed the children from the grandparents after they refused court-ordered psychological evaluations; Division later ordered no contact between the grandparents and children.
- On July 1, 2016 B.C. filed an FD (non-dissolution) grandparent-visitation complaint and an order to show cause seeking emergent visitation; the Division objected because an open FN (abuse/neglect) case involved the children.
- The Family Part judge denied emergent relief and dismissed the FD complaint as duplicative of the open FN matter, instructing B.C. to "file a motion."
- On appeal the parties agreed dismissal was improper; the Appellate Division reversed and remanded, directing the judge to consider B.C.’s visitation request either within the FN docket or as a companion FD case and to preserve the FD docket number for potential future enforcement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper procedure for grandparent visitation when an FN case is open | FD complaint under N.J.S.A. 9:2-7.1 was proper to seek visitation | FN proceedings govern and B.C. should intervene in FN; FD filing was procedurally deficient | Court: FD complaint should not have been dismissed; judge may hear visitation in FN or companion FD docket but FD docket number must be preserved |
| Whether dismissal of FD complaint without hearing was correct | Dismissal denied B.C. hearing and discovery; prima facie case for visitation warranted | Visitation was non‑emergent and FN confidentiality/control counselled against FD emergent relief | Court: Dismissal was improper; matter remanded for consideration and appropriate access to FN proceedings |
| Intervention and discovery rights in FN proceedings | Grandparents entitled to participate; FD process more accessible to self‑represented litigants | Intervention in FN is necessary and Division opposed intervention; resource parents lack discovery rights | Court: Intervention is possible but not preferred; FD docket is intended to preserve access for litigants without counsel; resource parents generally lack discovery absent party status |
| Standard for granting grandparent visitation when parent/Division objects | B.C. (as psychological parent/caretaker) argued for visitation based on best interests/psychological-parent status | Division and parent argued parental rights and need to show harm before overriding parental autonomy | Court: If parent (or Division) has custodial authority with constitutional parental autonomy, grandparent must show harm under Moriarty; where Division is custodian (no parental autonomy) or for children under Division care, the lower best‑interests standard applies; psychological‑parent status affects standing and intervention rights |
Key Cases Cited
- N.J. Div. of Youth & Family Servs. v. I.S., 214 N.J. 8 (2013) (distinguishes FN and FD dockets and favors separate but coordinated proceedings)
- Moriarty v. Bradt, 177 N.J. 84 (2003) (augmented Moriarty standard: grandparents must show visitation is necessary to avoid harm when overriding parental autonomy)
- V.C. v. M.J.B., 163 N.J. 200 (1999) (elements defining a psychological parent)
- R.K. v. D.L., 434 N.J. Super. 113 (App. Div. 2014) (FD docket use for third‑party custody/visitation and accessibility of FD for self‑represented litigants)
- N.J. Div. of Youth & Family Servs. v. D.P., 422 N.J. Super. 583 (App. Div. 2011) (limits on discovery and intervention rights for resource parents)
- Tortorice v. Vanartsdalen, 422 N.J. Super. 242 (App. Div. 2011) (granting grandparent visitation where party denying visitation lacked constitutionally based parental autonomy)