Adoption of a Child by M, Matter of

• Decision Date: 26 February 1976
• Parties: In the Matter of the ADOPTION OF A CHILD By M. (Matrimonial)
• Court: New Jersey Superior Court

Page 91

140 N.J.Super. 91

355 A.2d 211

In the Matter of the ADOPTION OF A CHILD By M.

Superior Court of New Jersey, Chancery Division (Matrimonial).

Feb. 26, 1976.

David M. Baer, Metuchen, for plaintiff (Baer, Arbeiter, Doty & Pribish, Metuchen, attorneys).

Joseph R. Postizzi, Clark, for defendant.

GRIFFIN, J.C.C., Temporarily Assigned.

This opinion involves an application by the paternal grandparents for visitation with their granddaughter. Adoption of the child by the second husband of the natural mother was denied. The court found that the natural father, the first husband, had not 'forsaken his parental obligations' as interpreted in In re Adoption of Children by D, 61 N.J. 89, 293 A.2d 171 (1972). Hence, the natural father still has visitation rights.

Counsel for the grandparents cites Mimkon v. Ford, 66 N.J. 426, 332 A.2d 199 (1975), as being dispositive of the issue. That case, however, is not applicable as the right of plaintiff grandparents to visitation was based on N.J.S.A. 9:2--7.1 as originally enacted in 1972. The statute then provided for visitation rights to grandparents only when 'either or both of the parents of a minor child * * * is or are deceased * * *' It has since been amended and now reads Where either or both of the parents of a minor child, residing within this State, is or are deceased, or divorced or living separate and apart in different habitats, regardless of the existence of a court order or agreement a grandparent or the grandparents of such child, who is or are the parents of such deceased, separated or divorced parent or parents, may apply to the Superior Court, in accordance with the Rules of Court, to have such child brought before such court; and the court may make such order or judgment as the best interests of the child may require, for visitation rights for such grandparent or grandparents in respect to such child.

The Supreme Court in Mimkon, supra, was aware of this change (66 N.J. at 431, fn. 1, 332 A.2d 199), but since this issue was not before the court, it was not discussed. Thus the statute, as amended, has not previously been construed. The question therefore remains whether the enactment was intended to legislate an independent right to visitation in the grandparents notwithstanding the existence of satisfactory visitation rights in the noncustodial parent.

This statute is in derogation of the common law. Grandparents have no common law right to visitation. Mimkon v. Ford, supra at 430, 332 A.2d 199; In re Goldfarb, 6 N.J.Super. 543, 70 A.2d 94 (Ch.Div.1949). Their rights are derivative through the natural parent save for legislation otherwise.

The legislative history of N.J.S.A. 9:2--7.1 is meager. The only statement concerning the amendment was released by the Senate Judiciary Committee on February 5, 1973 and states in relevant part:

This bill would allow, in addition, visitation rights for grandparents in cases where the parents were divorced or separated and living in different habitations.

No other hearings, reports or statements on the amendment (L.1973, c. 100, § 1) or the original enactment (L.1971, c. 420, § 1) are recorded in the New Jersey State Library. It is therefore a futile task to attempt to determine what the legislative intent was in relation to the present case. This, however, does not mean that the court is without any signpost to determine the issue. The statute provides for visitation rights 'as the best interest of the child may require * * *.' This is a familiar concept to matrimonial courts.

The court is aware of the affectionate relationship between grandparents and grandchild, and respects the views of the Supreme Court as expressed in Mimkon v. Ford, supra:

It is biological fact that grandparents are bound to their grandchildren by the unbreakable links of heredity. It is common human experience that the concern and interest grandparents take in the welfare of their grandchildren...