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Mimkon v. Ford

Decided: February 6, 1975.

ROSE DEITELBAUM MIMKON, PLAINTIFF-APPELLANT,
v.
DONALD FORD AND ADELE FORD, DEFENDANTS-RESPONDENTS



For reversal and remandment -- Chief Justice Hughes, and Justices Jacobs, Hall, Mountain, Sullivan and Pashman. For affirmance -- Justice Clifford. The opinion of the Court was delivered by Pashman, J. Sullivan, J. (concurring). Clifford, J. (dissenting). Hall and Sullivan, JJ., concur in the result.

Pashman

Where the mother of a child is deceased, is the maternal grandmother of that child entitled to visit her by virtue of N.J.S.A. 9:2-7.1 when the natural father and his second wife, who has legally adopted the child, refuse to permit visitation? That is the question presented on this appeal.

Jill Ford was born to Joan and Donald Ford on July 2, 1966. The parents had separated prior to her birth. They were divorced on November 4, 1968. Thereafter, Jill resided with her mother and maternal grandmother, Rose Mimkon, the plaintiff herein. The mother died on November 24, 1970 whereupon Donald Ford took custody of his daughter and has since cared for her.

Defendants Donald and Adele Ford were married in June 1969. Thereafter, Adele adopted Jill on August 13, 1971 in New Jersey. The maternal grandmother visited Jill at the Ford residence until she was denied that right. She then instituted an action for visitation rights. On January 4, 1972, a judgment was entered denying that right.

On February 1, 1972, N.J.S.A. 9:2-7.1 became effective and 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.

In August 1972, plaintiff filed a new complaint resulting in a judgment entered in March 1973 permitting visitation with her grandchild during the first weekend of each month.

This was reversed by the Appellate Division. 125 N.J. Super. 420 (1973). We granted certification. 64 N.J. 490 (1974).

In matters involving custody and visitation the ultimate concern of our courts is always for the welfare of the infant. This is the controlling element. In the past where the child's welfare did not dictate otherwise, the grandparents had neither a right to custody nor to visitation as against a parent. This was the common law of New Jersey. In re Goldfarb, 6 N.J. Super. 543 (Ch. Div. 1949); People ex rel. Marks v. Grenier, 249 App. Div. 564, 293 N.Y.S. 364 (N.Y. App. Div. 1937), aff'd 274 N.Y. 613, 10 N.E. 2d 577 (N.Y. Ct. App. 1937); cf. In re Alsdorf, 142 N.J. Eq. 246, 253 (Ch. 1948). In those cases in which visitation was granted to a grandparent, the decision was bottomed wholly upon a consideration of the child's welfare. At no time was there a judicial recognition of the existence of any right in the grandparent. Starr v. Gorman, 136 N.J. Eq. 105 (E. & A. 1945). The courts have been substantially unanimous in denying a grandparent visitation privileges with grandchildren when the custodial parent objects. This is true in Texas (Green v. Green, 485 S.W. 2d 941 (Tex. Ct. Civ. App. 1972), writ ref'd n.r.e.); Arkansas (Veazey v. Stewart, 251 Ark. 334, 472 S.W. 2d 102 (Ark. Sup. Ct. 1971)); California (Odell v. Lutz, 78 Cal. App. 2d 104, 177 P. 2d 628 (Cal. Dist. Ct. App. 1947)); District of Columbia (Jackson v. Fitzgerald, 185 A.2d 724 (D.C. Mun. Ct. App. 1962)); Louisiana (Succession of Reiss, 46 La. Ann. 347, 15 So. 151 (La. 1894)); New York (People ex rel. Sisson v. Sisson, 271 N.Y. 285, 2 N.E. 2d 660 (N.Y. Ct. App. 1936), Noll v. Noll, 277 App. Div. 286, 98 N.Y.S. 2d 938 (N.Y. App. Div. 1950)); Ohio (Kay v. Kay, 51 Ohio Op. 434, 112 N.E. 2d 562 (Ohio Ct. C.P. Cuyahoga Co., 1953)), and Pennsylvania (Commonwealth ex rel. McDonald v. Smith, 170 Pa. Super. 254, 85 A.2d 686 (Pa. Super. Ct. 1952), Commonwealth ex rel. Flannery v. Sharp, 151 Pa. Super. 612, 30 A.2d 810 (Pa.

Super. Ct. 1943)). In reviewing the cases from the various jurisdictions, and not considering statutory enactments, there appear to be five basic reasons relied upon for the denial of judicially enforced grandparent visitation rights, which have been summarized as follows:

(1) Ordinarily the parent's obligation to allow the grandparent to visit the child is moral, and not legal. [ E.g., Succession of Reiss, supra (15 So.) at 152; Smith v. Painter, 408 S.W. 2d 785, 786 (Tex. Ct. Civ. App. 1966), writ ref'd n.r.e., 412 S.W. 2d 28 (Tex. Sup. Ct. 1967)].

(2) The judicial enforcement of grandparent visitation rights would divide proper parental authority, thereby hindering it. [ E.g., Odell v. Lutz, supra (177 P. 2d) at 629; Jackson v. Fitzgerald, supra (185 A.2d) at 726].

(3) The best interests of the child are not furthered by forcing the child into the midst of a conflict of authority and ill feelings between the parent and grandparent. [ E.g., Noll v. Noll, supra, 98 N.Y.S. 2d at 940; Commonwealth ex rel. Flannery v. Sharp, supra, 30 A.2d at 812].

(4) Where there is a conflict as between grandparent and parent, the parent alone should be the judge, without having to account to anyone for the motives in denying the grandparent visitation. [ E.g., Odell v. Lutz, supra (177 P. 2d) at 629; Succession of Reiss, supra (15 So.) at 152].

(5) The ties of nature are the only efficacious means of restoring normal family relations and not the coercive measures which follow judicial intervention. [ E.g., Succession of Reiss, supra (15 So.) at 152; Commonwealth ex rel. Flannery v. Sharp, supra, 30 A.2d at 812].

[Gault, "Statutory Grandparent Visitation," 5 St. Mary's L.J. 474, 480-81 (1973)].

N.J.S.A. 9:2-7.1, providing for visitation when a parent has died, changes the common law rule as to the right of grandparents.*fn1 The statute creates an independent

action in the grandparent. In no way does the right asserted by plaintiff depend on continued relations through the deceased daughter. If Donald Ford, the natural father, after taking custody of the child, had remarried without subsequent adoption by the stepmother, or did not remarry, and the trial judge found as a fact that visitation by plaintiff grandmother would redound to the child's best interest, as he did in this case, ...


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