*1 a circle and the distance to farthest reaches of em ployer-provided as the radius. employee parking “Going lot and circle, coming” accidents within that created occurring fashion, now I patently arbitrary compensable. see that concept as “impracticable judicial administration and ephemeral but foundation nexus any significant be tween the and the journey Ricciardi v. Aniero employment,” Co., Concrete 64 N. J. 60, 63 A (1973). likely result is a of claims I think gaggle should be barred. rightfully which I would affirm the Division’s reversal of Appellate order of Division of Workmen’s Compensa- tion.
Justice Sullivan Judge authorize me Conford indicate agreement their this opinion. — Hughes
For reversal Chief Justice and Justices Jacobs, Mountain and Pashman —4. —
For Justices Sullivan and Clifford affirmance Conford —3. Judge MIMKON, PLAINTIFF-APPELLANT,
ROSE DEITELBAUM FORD, DONALD FORD AND ADELE DEFENDANTS-RE- SPONDENTS. Argued September 10, February 6, 1974 Decided *3 Mr. Marie Yasser argued cause for plaintiff-appellant Finn, Kendis, Vasser, (Messrs. Bloom, Rimm & attorneys; Mr. Vasser on the brief). Gerard G.
Mr. Gross the cause defendants- argued Friss, Mr. Messrs. McGahn and attorneys; respondents( Gross on the brief).
The delivered opinion Court was deceased, J. ;Where the mother of child is Pashman, is the maternal of that child entitled to visit grandmother her by of N. J. 3. A. 9:2-7.1 when the natural father virtue wife, child, and his second who re- legally has adopted fuse to visitation? That is the permit question presented on this appeal.
Jill was born 2, Ford to Joan and Donald Ford on July 1966. parents The had to her birth. separated prior They were divorced on 4, Thereafter, November 1968. Jill re- sided with her mother and maternal Rose grandmother, Mimkon, the plaintiff herein. mother died on Novem- 24, ber whereupon Donald Ford took of his custody and has cared for daughter since heT.
Defendants Donald and Ford Adele were in June married Thereafter, Adele Jill on 1971 in adopted August New The maternal Jersey. grandmother visited Jill at the Ford until residence she was denied that She then right. instituted action for visitation On rights. January 1972, a was entered denying right. 1, 1972,
On February 8. A. 9:2-7.1 became effective and provided: parents child, residing Where either or both of the of a minor State, deceased, grand-
within this is or or the of such who is are the deceased parents, may apply Superior *4 to the Court for a writ corpus brought court; habeas to have such child before such on thereof, the return judgment, the court make such order or as may require rights the best interest of for visitation grandparents respect to such child. In 1972, August plaintiff filed a new complaint resulting in a entered March 1973 permitting with her grandchild during first weekend of each month.
430 125 N. J. reversed Division. Appellate
This was 64 420 We certification. N. J. 490 Super. (1973). granted (1974).
In
and visitation
custody
matters
the ultimate
involving
is always
concern of our courts
for the welfare of
in
fant.
In
This is the
element.
controlling
past where
otherwise,
the child’s
did not dictate
welfare
the grand
a
parents had neither
nor to
right
custody
visitation as
a
against
law
parent. This was the common
of New Jersey.
In re
N.
Goldfarb, 6
J. Super. 543
Div.
(Ch.
1949); People
ex
Grenier,
rel. Marks v.
564,
249
Div.
293 N. Y.
App.
S.
364 (N. Y.
274 N. Y.
E.
App.
613,
Div.
10 N.
1937), aff’d
2d 577
Y. Ct.
N. J.
(N.
1937);
Alsdorf,
In re
142
App.
cf.
Eq. 246, 253
(Ch. 1948).
those cases
which visita
tion was
to a
granted
bot
grandaparent,
decision was
tomed
a
wholly upon
consideration of
welfare.
the child’s
At no time
was there
judicial
recognition
the existence
of any
Gorman,
in the
right
v.
grandparent. Starr
136
105
Eq.
& A.
(E.
1945). The courts have been sub
stantially unanimous in
denying
grandparent visitation
when
privileges
grandchildren
the custodial
ob
Green,
jects. This is true in Texas
v.
485
(Green
W. 2d
S.
941
1972),
;
Ct. Civ.
writ ref’d n. r.
Arkansas
(Tex.
App.
e.)
(Ve
Stewart,
v.
251 Ark.
472
334,
S. W.
102
azey
2d
Lutz,
Ct.
California
v.
1971));
(Odell
78
(Ark. Sup.
Cal.
P.
628
104, 177
2d
Ct.
(Cal.
2d
Dist.
App.
App. 1947));
v.
(Jackson
Fitzgerald,
District of Columbia
431 from the cases the various 1943)). reviewing Ct. Super. statutory enactments, jurisdictions, considering not there and to reasons relied be five basic the denial appear visitation of enforced which judicially grandparent rights, have been summarized as follows: Ordinarily (1) parent’s obligation grandparent to allow the Reiss, moral, legal. g., child
visit
not
Succession
[E.
is
and
of
supra
(Tex.
(15 So.)
152;
Painter,
v.
at
Smith
W. 2d
408 S.
786
App.
Sup.
1966),
n.r.e.,
(Tex.
Ct. Civ.
writ ref’d
action in as- In no does the grandparent. way right *6 serted on relations by plaintiff through continued depend father, natural Pord, deceased If Donald daughter. after had remarried without taking custody remarry, or did not subsequent adoption by the stepmother, and the trial as a fact that visitation by plain- found judge tiff interest, best grandmother redound to the child’s ease, as he did this the visitation statute would plainly and applicable call for the of visitation provision rights to plaintiff.
The factual pattern actually presented, however, includes of adoption Jill her stepmother, thereby requiring the consideration of possible embodied in policies conflicting J.N. 8. A. 9:3-17 et seq. as amended in 1953. The pertinent sections of that statute provide: give
9:3-17 This act shall be administered so as to effect to the public policy provide this of State to for of the welfare requiring placement adoption pro- children for and so toas policies procedures socially necessary mote and which are protection children, and desirable for the of such their nat- parents parents. adopting end, ural and their To it necessary and desirable. 9:3-30 vided, however, which are founded terminate all father or turbance of their parents. all (A) (c) inheritance under the intestate laws of this relationships The protect stepmother, entry rights, duties, between the child and his that when the of a relationships adopting parents [*] and the ![: such T adoption relationships, including rights to the child adopting parent obligations adoption * * * is consummated with parents, shall terminate from later dis- the natural State; pro- any person is a and shall step- parents, may apply Superior or divorced Court, or to the Court, accordance with the brought Rules of to have such child court; may before such judg- and the court make such order or ment, may require, as the best interest of the child for visitation rights grandparents respect such child. right granted only of visitation was therefore where one n orboth natural are deceased also but where the living separate apart divorced regard- in different homes and existing agreement. less of an court order or approval respec- father, of the mother or consent adoption any tively, such shall not affect or terminate re- father, lationships between and such nor the child mother or rights under inheritance the intestate laws of this through parent. State the other Do the provisions override visita- tion ? statute The Appellate Division that after adoption, held N. on J. S. A. adopting parents, 9:3-30(A), relying refuse to permit to visit with grandchild despite visitation statute.2 We disagree Appel- late N. Division’s J. 8. A. interpretation 9:2-7.1 and N. J. 8. A. 9:3-17 seq. et
Both statutes seek provide substitute re parental for children lationships who, reason, for some have been deprived of the benefits of a healthy with one relationship *7 or both natural parents. As statutes which deal same matter or v. Passaic subject, Bd. Taxa Cty. Clifton tion, 411, 28 N. J. 421 and which seek achieve (1958), to legislative same overall Gualano v. Bd. School purpose, Dist., Elizabeth Estimate School 72 N. J. 237, Super. Div. aif’d 39 (Law 1962), N. J. 300 (1963), should they Sutherland, in must be read materia. 2A pari Statutory Con struction ed. at 1973), 51.03 This (Sands rule of § statutory construction derives from reasonable presump tion that are aware legislators of relevant legislation. prior Federanko, v. 26 N. J. 119, State 129 (1958). * * * guiding principle The is if it is natural and reasonable * * * legislature to think that members of the an- think about impressions other and have their derived from it influence understanding effect, question; their of the act whose is in then a question court called to construe the act should also allow understanding by impressions
its of it be to derived from influenced is, perhaps, say Appel 2It more accurate to the effect of the holding adoption, stepmother late Division is that after alone grandparent. refuse visitation Her husband cannot invoke (A) adopting parent. J. S. N. A. 9:3-30 not an because he is
434 (Sands Statutory Sutherland, Construction [2A the other statute. 1973), 298-99]. at 51.03 § ed. stat when the obviously applies rule most While the went session the same during were enacted utes question Kervick, 68, J. 34 N. time, Fried v. effect at the same into Wasserman, J. 75 N. Super. State v. 70-71 (1961); N. J. 516 aff’d 39 (1963), 487-488 Div. 1962), (App. another, 2A Suther where reference to one they make specific land, 51.03 ed. at 1973), Construction Statutory (Sands § statutes when the it even 299, may applied appropriately each reference were at and make no adopted different times Book, & J. 552—553 (E. other. 90 N. Eq. re Green, see v. 62 N. J. 547 1919); (1973). State D., In re As we noted in Children Adoption of 61 N. J. N. J. 89, 92 S. A. 9 :3-17 et seq. princi is (1972), concerned with other than rela pally adoptions by persons tives of children because “placed adoption” par their ents or unable care unwilling for them. State Cf. Wasserman, 75 N. J. 480 Div. Super. 1962), aff’d (App. J.N. In that context defendants’ (1963). contention that the statute was adoption intended to rela protect between the tionship adopted and the adopting parents from interference the natural undeniably sound. S. A. :3-17(c). The natural parents caused the child to be placed position of adoptability; they can be most detrimental to the child’s if well-being permitted inter fere in the adoptive home. That is why the terminates all relationships *8 the child and his natural N. J. A. parents. S. 9:3-30(A). us, however, The case before presents entirely different — —(cid:127) which, one
situation is far perhaps, less common that a child to of born later parents divorced, custody in the naural mother until death and then in custody father, father, and an remarriage application by his new wife to the child. This is not a adopt case which the child was “placed adoption” by nor did strangers, the adoption a of transfer of the child. physical custody involve case, Legislature the zone of concern of the primary outside N. J. 9 :3-17 et of insulat- 8. A. enacting seq., policy from his natural is not child ing adoptive so as would be other situations. clearly compelling it There is no in the record to indicate that Joan evidence was a and to her Ford fit anything loving parent prior but death. The burden that a divorced natural of establishing has “forsaken parent parental obligations,” pursuant [his] substantial, N. J. A. 9 In re the to 8. is :3-24(C), Adoption D., The Children N. J. 89 no and we (1972), have of to believe ordered the reason that the -trial court have would Thus, over had alive. adoption Joan’s she still been protest we with- a which the well- case in dealing physical child or his with being adopted adop- his relationship tive be threatened a parents may by meddling parent who has been adjudicated unfit to raise the child.3
Furthermore, a it is natural rather than grandparent natural iswho visitation here. parent seeking Interference a natural by relationship the child and the adopting parents introduces alternative and con- flicting authority life, in the figures child’s tremen- creating dous emotional tension in the child threaten- ultimately to undermine the ing authority of the adoptive say grandparent categorically 3This is not to that a be de prived any rights by par to visitation the fact that the deceased disregarded parental obligations prior ent had so his death his parental obliga a court would have found that he had “forsaken his pursuant 9:3-24(0) N. J. A. tions” 8. or N. J. 8. A. 9:2-19 had question proper proceeding. been raised in a The conduct of the parent may bearing deceased not have on whether visita grandparent tion is in the best interests of the child. That judge specific a matter which must be determined the trial on the facts in each case. hand, nothing opinion On the other suggest in this is intended to could invoke the visitation after adjudicated has in fact been “for- have parental obligations” saken his ordered. In that case policy 9:3-17(c), plainly subd. A controls. *9 ordi- Grandparents their make decisions. ability to parental life; are child’s narily they different role in the play very assert exclusive not and do not authority possessively figures best, they generous to make decisions. At rights parental com- which sources acceptance, of unconditional love and roles of the parents. rather than with the plements conflicts lesser risk of a much Thus, visitation involves well-being threat to the physical psychological relationship and natural healthy or to the of a development than con- parents might the child and the adopting extent, To grand- this parent. the natural by tinued contact case, does facts this visitation, the context of parent embodied in the adop- apparently not clash with the policies tion statute. A. 9 1971, N. J. :2-7.1 spoke exclusively enacted in 8.
As in which one or both natural had parents to the situation have contemplated possibil- died. must Legislature bad natural to the surviving parent, responding that a ity in-laws, object that arises occasionally among might feeling child by parents to continued contact he or and the might remarry or that she deceased spouse what seem to be encroach- object might new stepparent her parental position his ment necessi- very possibility It was this which spouse. deceased sur- statute. The fact that the enactment tated her new spouse his or give legal natural viving the child and objections by adopting invoking their color to A should be permitted N. J. subd. 9:3-17(c), 8. Legislature purposes enacting to subvert the in- not believe that the Legislature A. 9:2-7.1. We do statutorily of visitation granted right tended permit wholly to be frustrated the otherwise by grandparents statute.4 adoption policies beneficent legislative suggests grand that natural intention 4Plaintiff grandchildren permitted after can to visit their as from the fact inferred he *10 It is fact that biological are bound grandparents their to grandchildren the links unbreakable of It heredity. is common human the experience that concern and interest take in welfare of their grandparents grandchildren far the exceeds in explicable anything purely biological terms. A very special often arises and continues relationship between The grandparents grandchildren. tensions and conflicts which mar relations between commonly and children are often absent those very same and their grandchildren. Visits with are often a grandparent precious aof part experience child’s there are benefits which de- volve the from the grandchild with relationship his which he grandparents cannot from other any relation- derive Neither the ship. nor this Court Legislature is blind to human truths which grandparents and grandchildren 'have always known. this, view of we can say is only it proper that that
in unfortunate the case of parental separation death, or. should sometimes have of grandparents privileges visitation even over the objections of the adoptive is parents. It not only ordinary devotion to the grandchild that the merits the grandparent’s continued be him,.but to with right also the that cases, fact in the continuous love and attention aof grandparent may mitigate the feelings guilt rejec or tion, which a child feel at death of or separation from a and ease the parent, painful transition.
It should be N. J A. 9 noted that .8. :2-7.1 places decison grant to an order deny visitation permitting to in place conditions on such visitation discretion of the trial Where the has been grandchild judge. provision Assembly enacted in 1971 did not include a in found specifically grandpar- version the bill which would have excluded adopted. Assembly ent visitation when had been Bill No. (passed Assembly 1971). 195th Sess. December While this clearly Legislature contemplation indicates that had within its problems case, agree Appellate in raised this we Di- properly vision below no such inferences can be drawn from this legislative history. Super, 125 N. J. at 424. aof visitation the effect considering in it is adopted, proper, account the take into order on the well-being grandparent might a particular that visitation by possibility or otherwise adoptive parents the authority undermine under- policies in the child. The create psychological conflict over- statute, although categorically the adoption lying statute, be those riding judicial exercise discretion taken into account area. this a full hearing, trial found after court below restrictions, for by plaintiff,
initial visitation specified month, hour each best interests one cus order, concerning child. We note all orders that this like at time visitation, any modification on tody subject *11 Sheehan, circumstances, Sheehan v. showing changed cf. N. denied 51 J. 287 Div. certif. Super. 1958), (App. J. A. 9:2-7.1 28 147 even N. S. does though (1958), J. 21 N. explicitly Fantony Fantony, provide. would, fact, that he the stated on (1956). judge notice, review the order after months proper visitation relationship. which was needed to further observe period the This time has passed. not, as whether or
A should now be undertaken to hearing exist, the now it would present at and as circumstances time an order for continued be the child’s best interests to enter the visitation. Eor such matter remanded purpose, trial court. Appellate recognized, quite properly, Division situation, must
delicacy of the but its be reversed judgment and the reinstated. judge the trial
Reversed and remanded. J. I that (concurring). agree provisions
Sullivan, of the act do not “override” the visi- However, I the majority opinion tation statute. feel that emphasis grand- too much the visitation places rights on statute, it does in- parent has under not adequately dieate More- the child’s best interest comes first. always that of this over, I on record whether, evidentiary question interest, case, in the child’s best the order visitation was or, at the least, pres- at whether reinstatement of order and the ent time not work harm on the child may grievous unit of which is a family she part. trial have
Here the ordered that visitation judge plaintiff father objections over the well as the child’s as dis- mother who that has been a adoptive felt plaintiff unit. The record indicates ruptive influence their family that court-ordered attempts give plaintiff an failed, with the child .not but had adverse only have have and emotional on child herself. It physical impact be the child has been conditioned her against grand- so, mother. If if this is hut nurturing regretted, he relationship between is to grandchild at family had and the expense the child’s well-being lives, unit now as to which she I would have no doubt what a court should do.
The majority opinion, after affirming the ruling trial court on the issue statutory construction, remands the matter to the trial court to hold whether hearing as to or not at the time and as present circumstances now exist it would he in the child’s best interests to enter order for continued visitation. I agree remand and the for a necessity hearing, but would it he held require within the framework of I what have said above. In this court regard, the trial should interview to ascer- *12 tain, if her possible, feelings the matter. If the child continues to oppose by her grandmother, the court should to have the try child articulate her reasons. All this should then be amade part of the record. J. Because I think (dissenting). the legislature
Clifford, could not have intended N. J. A. S. :2—7.1 to apply us, the situation before death of namely, the natural mother of the father remarriage by followed of his adoption by child the new I spouse, deny the visitation priv-
MO ob- parents’ over the here by
ilege sought grandmother jection. as New to be set forth Jersey common law of
I take the : Goldfarb, Super. (Ch. 1949) Div. in In re granted grand- been In eases which visitation has to a those entirely upon parent, a result has been based consideration judicial recognition of the child of the existence the welfare without grandparent. any right in the here it consideration, under understand the statute As I Rather, law. it common addresses change does not that from following forth in the dictum Goldfarb: situation set surviving parent grandparents on In and the a contest a readily parent’s side, can understand circum- the deceased one justify the conclusion that best interests stances could grandparents. require [Id. 547-548]. at visitation with the — contemplated the first circumstance1 * * * is or de- “either or both [natural] *” * * — a court can consider grant' visita- ceased “as to the deceased best parent’s parent tion privileges may interest of the child require.” case, is not our and we are faced with entirely But considerations. from Again different Goldfarb: surviving parent spouse But where remarries the new adopts infant, thereby establishing family a new relation for the very presented. duty right different situation parents. how the child shall raised determine rest A merely possesses court ception not interfere because it con- different relationships as to how to rear the child what social should 548], [Id. be fostered maintained. at I would conclude that of Jill de- wife, Adele, fendant Donald Eord’s second infant there- opinion respect application 1 I no view intimate in this A. J. S. A. 9:2-7.1 when the other circumstances to which is ad it i. e., sepa prevail, living dressed where the are “divorced or ** apart rate and in different habitats
441 sense of every significant “parents” had two upon precedent triggering first condition Therefore, word. action thereunder and an existed no longer lie. could not at the time recognize which does not
A holding or stretches only ignores had two parents this suit Jill rele but, distressingly, more of the statute language my status. to “second-class” adopting parent gates from every per and Eord is for every purpose view Adele maternal as much the terms save blood any spective her daughter. mother to any to the child as is other parent Fischer, 499 State 1924); Rosier 2 N. J. Misc. (Ch. v. See Lebovits, N. Y. 830, 322 S. ex rel. Herman v. 66 Misc. 2d v. But 1971). Roquemore Roquemore, 123 2d Ct. (Sup. cf. 1969); Cal. 80 Cal. Rptr. (Ct. App. 2d App. Hutter, 339 N. Y. 2d 708 v. D. 2d S. Scranton relationship Div. other 1973). Any perception (App. husband and wife with their the cohesion binding strains to how choose to raise they Their decisions as child. so tenuous an inter by not be tampered
child should to transform it an invita of the statute as into pretation intrusion in presented tion for court’s the circumstances here. of a natural death visited tragedy Re here. expression is too obvious to call for further toward reuni wholesome steps
marriage event of a family unhappy fication unit broken over the parents’ death. grandparental Enforcing frustrate only ns can in the circumstances before objection the family to reconstruct defendants’ efforts good-faith objec life. Given the stability into the bring daughter’s —(cid:127) —(cid:127) I for- well-taken or otherwise tion to visitation itbe and a tug-of- between the acrimony parties see continued Compare my dissenting opin war with Jill the middle. 66 N. J. 231 Judicial Rockfeld, (1974). ion in Small un- area generally in this sensitive should interference 4A2
dertaken only hesitancy and in this greatest case not at all. JJ., concur in the result. Sullivan,
Hall For reversal Justice remandment—Chief Hughes, and Justices Jacobs, Hall, Mountain, Sullivan Pashman —6.
For Clieeokd — 1. affirmance—Justice