Ford v. Mimkon

• Decision Date: 12 November 1973
• Citation: 311 A.2d 211,125 N.J.Super. 420
• Parties: Donald FORD and Adele Ford, Appellants, v. Rose Deitelbaum MIMKON, Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 420

125 N.J.Super. 420

311 A.2d 211

Donald FORD and Adele Ford, Appellants, v. Rose Deitelbaum MIMKON, Respondent.

Superior Court of New Jersey Appellate Division.

Argued Oct. 30, 1973.

Decided Nov. 12, 1973.

Gerard C. Gross, Pleasantville, for appellants (McGahn & Friss, Atlantic City, attorneys).

Mark Vasser, Atlantic City, for respondent.

Before Judges HALPERN, MATTHEWS and BISCHOFF.

The opinion of the court was delivered by

HALPERN, P.J.A.D.

The narrow issue on this appeal is whether a grandparent has the legal right to visit with her seven-year-old granddaughter (her deceased daughter's child) when the natural father, and his second wife who has legally adopted the child, refuse to permit it.

Respondent Rose Mimkon was the mother of Joan Ford who died on November 24, 1970. Jill Ford was born to appellant Donald Ford and Joan Ford on July 2, 1966. The Fords separated prior to Jill's birth and were divorced in November 1968. Respondent resided with her daughter and Jill from the date of Jill's birth to the date of Joan's death, at which time Donald Ford took custody of Jill. In June 1969 Donald Ford married appellant Adele Ford. On August 13, 1971 a judgment was entered granting the adoption of Jill to Adele.

No useful purpose would be served in setting forth the various court proceedings instituted by respondent, following Joan's death, to obtain the legal right to visit with Jill. Suffice it to say, the trial court found it to be for the best interest of Jill that respondent have the right to visit Jill. It based its decision on N.J.S.A. 9:2--7.1, effective February 1, 1972, which provided:

Where either or both of the parents of a minor child, residing within this State, is or are deceased, a grandparent or the grandparents of such child, who is or are the parents of such deceased parent or parents, may apply to the Superior Court for a writ of habeas corpus to have such child brought before such court; and on the return thereof, the court may make such order or judgment, as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child.

It further held that the provisions of our adoption statute, N.J.S.A. 9:3--17 et seq., as amended in 1953, did not 'over-ride' N.J.S.A. 9:2--7.1, but that the statutes should be read In pari materia. So construed, it granted visitation rights to respondent. This appeal followed.

Before dealing with the issues in this case, we should take note that N.J.S.A. 9:2--7.1 was amended, effective May 2, 1973, to provide

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 interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child.

Thus, as is indicated in the Committee Statement attached to the statute, grandparents' visitation rights were expanded, and jurisdiction placed in the Superior Court under rules of court rather than by Habeas corpus.

We disagree with the trial court's interpretation of N.J.S.A. 9:2--7.1 and N.J.S.A. 9:3--17 et seq. The clear intent of the Legislature, as expressed in the statement of public policy in the adoption statute, was to protect the adopted child from interference by his natural parents after he has been established in his adoptive home; and to protect the adopting parents from later disturbance of their relationship with the child by the natural parents. N.J.S.A. 9:3--17. If the natural parents are barred from visitation rights with their own child after adoption, it...