L. v. G.

• Decision Date: 18 June 1985
• Citation: 203 N.J.Super. 385,497 A.2d 215
• Parties: L., K., C., B. and H.K., Plaintiffs v. G. and H., his wife, Defendants.
• Court: New Jersey Superior Court

Page 385

203 N.J.Super. 385

497 A.2d 215

L., K., C., B. and H.K., Plaintiffs v. G. and H., his wife, Defendants.

Superior Court of New Jersey, Chancery Division,

Family Part, Bergen County.

Decided June 18, 1985.

Jo Ann Catello Onello, Paramus, for plaintiffs

Amanda Clark for defendants Freint, Jacobs & Bell, Dumont, attorneys.

OPINION

KRAFTE, J.S.C.

Do adult, emancipated siblings have the right to visit with their minor siblings? Neither the Legislature nor the courts of this state have heretofore addressed such a situation.

A brief familial history which culminates in this application is in order. In 1975, G. married his present wife, H., his first wife, E., mother of six children having died in 1972. Unfortunately, following the present wife, H's. arrival in the household, discord arose between her and the four oldest girls, namely, L., K., C., and B. As time passed, instead of melding into a new family unit, discord escalated, and a strong resentment developed. As each of the girls reached the age of eighteen, they moved out of the home and began living together, creating their own independent family unit, securing education as well as employment for themselves. With H.K., the maternal grandmother joining, the girls instituted this action against their father and stepmother, G. and H.

The procedural history of this case begins in April 1984, when plaintiffs filed a Verified Complaint against defendants for visitation with their respective minor siblings and grandchildren, V. and Ch. On October 19, 1984, the parties entered into a Consent Final Judgment, which was subject to review, if necessary, within ninety days. The Judgment provided that plaintiffs, L., K., C. and B. would have the right to visit with Ch. and V. twice per month at the home of defendants, where said minors reside. Plaintiffs were also afforded the right to telephone Ch. and V. during reasonable hours, and if they wished, to exchange gifts. It was also agreed that defendant H. would not interfere with visitation, and that if she were home at the time of the visitation, she would not be present in the immediate room where Ch. and V. met with their sisters. The parties further agreed to attempt to be as cordial as possible under the circumstances, and to take part in family counselling. Finally, the parties understood that the Judgment was intended as a step toward greater visitation in the future.

In November 1984, sibling-plaintiffs filed a Notice of Motion for visitation outside of the defendants' home with their minor siblings, Ch. and V. Said motion was scheduled for oral argument on January 18, 1985. In the mean time, plaintiffs filed an Order to Show Cause for an emergent hearing to take place on Friday, December 21, 1984, to allow them Christmas Eve off-premises visitation with their siblings. A hearing took place on that date, at which time plaintiff's request was denied, and the Order to Show Cause application carried until January 18, 1985, to be heard concurrently with plaintiffs' motion seeking extended visitation outside the defendants' home.

Plaintiffs assert that their minor siblings, V. and Ch., have continually expressed a desire to see, meet with and share the life experiences of their sisters. Plaintiffs further assert that when the parties entered into the Consent Final Judgment, it was but an acknowledged initial step toward more liberal and open visitation outside the home of defendants. They state that the atmosphere at defendant's home where visitation occurs is cold and antagonistic, and that defendants have proven to be rigid and unwilling to abide by the terms of the Judgment in working toward greater visitation.

Plaintiffs contend that it is in the best interest of the minor children to have a relationship with their siblings. They state that they do not wish to compete with defendants for Ch.' and V's. affection, nor do they intend to interfere with defendants' parenting, to influence the minor children against their father or stepmother, or to cause disharmony to the children's homelife. On the contrary, plaintiffs state that their reason for instituting this action is to avoid any surreptitious meetings between themselves and their siblings which would be in defiance of defendants' wishes. They merely wish to share in the lives of their brother and sister.

Defendants, on the other hand, strongly oppose plaintiffs' application. They assert that it would not be in Ch.' or V.'s best interest to have their older siblings competing with defendants for the children's affections. Defendants believe that, based upon their past experiences with plaintiffs, any off-premises visitation will be used to influence the minor children against them and to undermine their authority, thereby causing disruption of the home life defendants and the two minor children now enjoy. Defendants also contend that they have extended invitations to plaintiffs to join Ch., V. and themselves at home for meals, including Christmas dinner, but that plaintiffs have declined. It is the defendants' contention that the language contained in the Final Judgment which pertains to "greater visitation" in no way meant "outside visitation". Finally defendants assert that plaintiffs lack standing to bring this action and thus, their application must be denied.

There is no question that during pending or post-judgment matrimonial litigation, our Legislature, in N.J.S.A. 2A:34-23, provided the courts of this State with broad powers to make determinations concerning the care, custody, education and maintenance of children. ¹ Moreover, R. 5:1-2(a) provides in pertinent part:

All civil actions in which the principal claim is unique to or arises out of a family or family-type relationship shall be brought in the Family Part ...

Based upon the above-cited authority, this Court is satisfied that the instant case is well within its jurisdictional confines as it pertains to V. Since Ch. has reached the age of eighteen during the pendency of this action, this matter is moot as to him.

This Court must next address defendants' assertion that plaintiffs lack standing to bring this action. Specifically, they contend that plaintiffs possess neither a common-law nor statutory right to request visitation with their siblings.

Again, this Court refers to R. 5:1-2(a), which includes as cognizable in the Family Part "all civil actions in which the principal claim is unique to or arises out of a family or family-type relationship...." It stands to reason that an immediate family member, such as a parent, grandparent, brother or sister, would possess an interest which is, at the very least, equal to, if not superior to that of any other person who may possibly have a stake in the outcome of an action which is cognizable in the Family Part. What right could be more basic, more precious than that of sharing life experiences with one's own brother or sister? Surely, nothing can equal or replace either the emotional and biological bonds which exist between siblings, or the memories of trials and tribulations endured together, brotherly or sisterly quarrels and reconciliations, and the sharing of secrets, fears and dreams. To be able to establish and nurture such a relationship is, without question, a natural, inalienable right which is bestowed upon one merely by virtue of birth into the same family. See R. 5:1-2(a). Therefore, this Court finds that plaintiffs are clearly interested parties in this case, and have standing to seek relief by their request for visitation with their siblings.

While no statutory right has been created in this State which would allow siblings to bring a cause of action for visitation, several other state legislatures have addressed this issue. Louisiana's Civil Code contains a section which specifically addresses visitation rights of siblings:

If one of the parties to a marriage dies, [or] the obligation to live together is terminated by an action of separation from bed and board, or the marriage is terminated by divorce, the siblings of a minor child or children of the marriage may have reasonable visitation rights to such child or children during their minority if the Court in its discretion finds that such visitation rights would be in the best interests of the child or children and that the siblings have been unreasonably denied visitation rights. La.Rev.Stat. Ann. Sec. 9:572. [Emphasis supplied].

Similarly, the Code of Virginia extends the right of visitation to various family members:

Upon decreeing the dissolution of a marriage, and also upon decreeing a divorce, whether from the bond of matrimony or from bed and board, and upon decreeing that neither party is entitled to a divorce, the Court may make such further decree as it shall deem expedient concerning the custody and support of the minor children of the parties, and concerning visitation rights of the parents and visitation privileges for grandparents, step-parents or other family members. Va.Code Sec. 20-107.2. [Emphasis supplied].

While the two aforementioned statutes grant visitation rights to family members or siblings specifically, several state legislatures have expanded third party visitation rights which include persons who are not related to the child. Some of these statutes limit such visitation to persons having an interest in the welfare of the child, including the following In the discretion of the court, reasonable visitation rights may be granted to any other person having an interest in the welfare of the child. Cal.Civ.Code Sec. 4601. [Emphasis supplied].

... In the discretion of the court reasonable companionship or visitation rights may be granted to any other person having an interest in the welfare of the child. Ohio Rev.Code Supp. Sec. 3109.05(B). [Emphasis supplied].

Reasonable visitation rights shall be awarded to parents and to any person interested in the welfare of the child in the discretion of the court, unless it is shown that...