Sorry for the long note. I have an interesting problem, and the practice point or question I need advice on is when to file a motion for summary judgment.

I have a P/F who received a default custody order for his two children, the mother did not appear. The children and their father were staying with relatives (great aunt and great grandmother) and for a time one of them was living with those relatives without him. Those the GA and GG filed a separate petition for custody (under a new docket) under the theory that they were 'psychological parents' according to the doctrine introduced by Watson. The judge intends to have a plenary hearing on this.

I have been given advice by a respected colleague that I should file a motion for summary judgment. The father (obviously) has not died, nor has he been found unfit. (In fact he gets good reviews from the division, but that is not yet on the record- hence my question). The children both live with him since the end of June.

Grossman, Cheifetz say summary judgment is generally inappropriate before discovery, but there are exceptions (no material facts in dispute). Here I believe the material facts are that he has not been found unfit and is not dead.

Also, since he is a single father, I am trying to do this with the fewest filings possible.

The question. File a motion for summary judgment prior to the discovery for the plenary hearing on 'psychological parentage' or wait until after discovery?

Thank you for your help.

Wait.   My .02.   I agree with Greg and Cary and besides, the plenary is scheduled and needs to happen before a determination is made.   Being alive, while helpful in raising children, does not automatically establish what is in the children's best interests, although constitutionally it should be given weight. 

Albertina Webb ,  Esq Office: 732-852-7550  |  Fax: 609-452-1888 2 Bridge Avenue, Suite 211 ‑ The Galleria ,  Red Bank ,  NJ   07701 www.hillwallack.com    [email protected]  |  vCard

Sorry for the long note. I have an interesting problem, and the practice point or question I need advice on is when to file a motion for summary judgment.

I have a P/F who received a default custody order for his two children, the mother did not appear. The children and their father were staying with relatives (great aunt and great grandmother) and for a time one of them was living with those relatives without him. Those the GA and GG filed a separate petition for custody (under a new docket) under the theory that they were 'psychological parents' according to the doctrine introduced by Watson. The judge intends to have a plenary hearing on this.

I have been given advice by a respected colleague that I should file a motion for summary judgment. The father (obviously) has not died, nor has he been found unfit. (In fact he gets good reviews from the division, but that is not yet on the record- hence my question). The children both live with him since the end of June.

Grossman, Cheifetz say summary judgment is generally inappropriate before discovery, but there are exceptions (no material facts in dispute). Here I believe the material facts are that he has not been found unfit and is not dead.

Also, since he is a single father, I am trying to do this with the fewest filings possible.

The question. File a motion for summary judgment prior to the discovery for the plenary hearing on 'psychological parentage' or wait until after discovery?

Thank you for your help.

Wait.   My .02.   I agree with Greg and Cary and besides, the plenary is scheduled and needs to happen before a determination is made.   Being alive, while helpful in raising children, does not automatically establish what is in the children's best interests, although constitutionally it should be given weight. 

Albertina Webb ,  Esq Office: 732-852-7550  |  Fax: 609-452-1888 2 Bridge Avenue, Suite 211 ‑ The Galleria ,  Red Bank ,  NJ   07701 www.hillwallack.com    [email protected]  |  vCard

Sorry for the long note. I have an interesting problem, and the practice point or question I need advice on is when to file a motion for summary judgment.

I have a P/F who received a default custody order for his two children, the mother did not appear. The children and their father were staying with relatives (great aunt and great grandmother) and for a time one of them was living with those relatives without him. Those the GA and GG filed a separate petition for custody (under a new docket) under the theory that they were 'psychological parents' according to the doctrine introduced by Watson. The judge intends to have a plenary hearing on this.

I have been given advice by a respected colleague that I should file a motion for summary judgment. The father (obviously) has not died, nor has he been found unfit. (In fact he gets good reviews from the division, but that is not yet on the record- hence my question). The children both live with him since the end of June.

Grossman, Cheifetz say summary judgment is generally inappropriate before discovery, but there are exceptions (no material facts in dispute). Here I believe the material facts are that he has not been found unfit and is not dead.

Also, since he is a single father, I am trying to do this with the fewest filings possible.

The question. File a motion for summary judgment prior to the discovery for the plenary hearing on 'psychological parentage' or wait until after discovery?

Thank you for your help.

Its actually a motion to dismiss the pleading as having no possibility of success on the merits.  We don't typically file them in Family but it provides the proper procedural basis for making what is essentially a S/J motion.

ANGELA M. SCAFURI, ESQ.                    

President, Morris County Bar Foundation

Immediate Past President, Family Law

  Section, American Association for Justice

Court-Approved Mediator for Family

  and Civil Matters

CADICINA LAW, LLC

36 CATTANO AVENUE, 6^th FLOOR

MORRISTOWN, NEW JERSEY 07960

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Wait.   My .02.   I agree with Greg and Cary and besides, the plenary is scheduled and needs to happen before a determination is made.   Being alive, while helpful in raising children, does not automatically establish what is in the children's best interests, although constitutionally it should be given weight. 

Albertina Webb ,  Esq Office: 732-852-7550  |  Fax: 609-452-1888 2 Bridge Avenue, Suite 211 ‑ The Galleria ,  Red Bank ,  NJ   07701 www.hillwallack.com    [email protected]  |  vCard

Sorry for the long note. I have an interesting problem, and the practice point or question I need advice on is when to file a motion for summary judgment.

I have a P/F who received a default custody order for his two children, the mother did not appear. The children and their father were staying with relatives (great aunt and great grandmother) and for a time one of them was living with those relatives without him. Those the GA and GG filed a separate petition for custody (under a new docket) under the theory that they were 'psychological parents' according to the doctrine introduced by Watson. The judge intends to have a plenary hearing on this.

I have been given advice by a respected colleague that I should file a motion for summary judgment. The father (obviously) has not died, nor has he been found unfit. (In fact he gets good reviews from the division, but that is not yet on the record- hence my question). The children both live with him since the end of June.

Grossman, Cheifetz say summary judgment is generally inappropriate before discovery, but there are exceptions (no material facts in dispute). Here I believe the material facts are that he has not been found unfit and is not dead.

Also, since he is a single father, I am trying to do this with the fewest filings possible.

The question. File a motion for summary judgment prior to the discovery for the plenary hearing on 'psychological parentage' or wait until after discovery?

Thank you for your help.

Wait.   My .02.   I agree with Greg and Cary and besides, the plenary is scheduled and needs to happen before a determination is made.   Being alive, while helpful in raising children, does not automatically establish what is in the children's best interests, although constitutionally it should be given weight. 

Albertina Webb ,  Esq Office: 732-852-7550  |  Fax: 609-452-1888 2 Bridge Avenue, Suite 211 ‑ The Galleria ,  Red Bank ,  NJ   07701 www.hillwallack.com    [email protected]  |  vCard

Sorry for the long note. I have an interesting problem, and the practice point or question I need advice on is when to file a motion for summary judgment.

I have a P/F who received a default custody order for his two children, the mother did not appear. The children and their father were staying with relatives (great aunt and great grandmother) and for a time one of them was living with those relatives without him. Those the GA and GG filed a separate petition for custody (under a new docket) under the theory that they were 'psychological parents' according to the doctrine introduced by Watson. The judge intends to have a plenary hearing on this.

I have been given advice by a respected colleague that I should file a motion for summary judgment. The father (obviously) has not died, nor has he been found unfit. (In fact he gets good reviews from the division, but that is not yet on the record- hence my question). The children both live with him since the end of June.

Grossman, Cheifetz say summary judgment is generally inappropriate before discovery, but there are exceptions (no material facts in dispute). Here I believe the material facts are that he has not been found unfit and is not dead.

Also, since he is a single father, I am trying to do this with the fewest filings possible.

The question. File a motion for summary judgment prior to the discovery for the plenary hearing on 'psychological parentage' or wait until after discovery?

Thank you for your help.