Mimkon v. Ford , 66 N.J. 426 ( 1975 )

Clifford, J.

(dissenting). Because I think the legislature could not have intended N. J. S. A. 9 :2 — 7.1 to apply to the situation before us, namely, death of the natural mother and remarriage of the father followed by adoption of his child by the new spouse, I would deny the visitation privilege sought by the grandmother here over the parents’ objection.

I take the common law of New Jersey to be as set forth in In re Goldfarb, 6 N. J. Super. 543, 547 (Ch. Div. 1949) :

In those eases in which visitation has been granted to a grandparent, the result has been based entirely upon a consideration of the welfare of the child without judicial recognition of the existence of any right in the grandparent.

As I understand the statute here under consideration, it does not change that common law. Rather, it addresses the situation set forth in the following dictum from Goldfarb:

In a contest between a surviving parent and the grandparents on the deceased parent’s side, one can readily understand that circumstances could justify the conclusion that the best interests of the child require visitation with the grandparents. [Id. at 547-548].

In the first circumstance¹ contemplated by the statute — “either or both of the [natural] parents * * * is or are deceased * * *” — the court can consider a grant' of visitation privileges to the deceased parent’s parent “as the best interest of the child may require.”

But that is not our case, and we are faced with entirely different considerations. Again from Goldfarb:

But where the surviving parent remarries and the new spouse adopts the infant, thereby establishing a new family relation for the child, a very different situation is presented. The duty and right to determine how the child shall be raised rest with the parents. A court may not interfere merely because it possesses a different conception as to how to rear the child or what social relationships should be fostered or maintained. [Id. at 548],

I would conclude that upon the adoption of Jill by defendant Donald Eord’s second wife, Adele, the infant thereupon had two “parents” in every significant sense of the word. Therefore, the first condition precedent for triggering the statute no longer existed and an action thereunder could not lie.

A holding which does not recognize that at the time of this suit Jill had two parents not only ignores or stretches the language of the statute but, more distressingly, relegates an adopting parent to “second-class” status. In my view Adele Eord is for every purpose and from every perspective and in any terms save blood as much the maternal parent to the child as is any other mother to her daughter. See Rosier v. Fischer, 2 N. J. Misc. 499 (Ch. 1924); State ex rel. Herman v. Lebovits, 66 Misc. 2d 830, 322 N. Y. S. 2d 123 (Sup. Ct. 1971). But cf. Roquemore v. Roquemore, 275 Cal. App. 2d 912, 80 Cal. Rptr. 432 (Ct. App. 1969); Scranton v. Hutter, 40 A. D. 2d 296, 339 N. Y. S. 2d 708 (App. Div. 1973). Any other perception of the relationship strains the cohesion binding husband and wife with their child. Their decisions as to how they choose to raise that child should not be tampered with by so tenuous an interpretation of the statute as to transform it into an invitation for a court’s intrusion in the circumstances presented here.

The tragedy visited upon a child by the death of a natural parent is too obvious to call for further expression here. Remarriage and adoption are wholesome steps toward reunification of a family unit broken by the unhappy event of death. Enforcing grandparental visitation over the parents’ objection in the circumstances before ns can only frustrate defendants’ good-faith efforts to reconstruct the family and to bring stability into the daughter’s life. Given the objection to visitation —• be it well-taken or otherwise —• I for-see continued acrimony between the parties and a tug-of-war with Jill in the middle. Compare my dissenting opinion in Small v. Rockfeld, 66 N. J. 231 (1974). Judicial interference in this sensitive area should generally be undertaken only with the greatest hesitancy and in this case not at all.

Hall and Sullivan, JJ., concur in the result.

For reversal and remandment — Chief Justice Hughes, and Justices Jacobs, Hall, Mountain, Sullivan and P ashman — 6.

For affirmance — Justice Clieeokd — 1.

1 I intimate no view in this opinion with respect to application of A. J. S. A. 9:2-7.1 when the other circumstances to which it is addressed prevail, i. e., where the parents are “divorced or living separate and apart in different habitats * *