Lynch, Milmed and Antell. The opinion of the court was delivered by Lynch, P.J.A.D.
Mrs. Rae Bennett Truax, the paternal grandmother of Crystal de Forest Bennett, appeals from denial of her motion pursuant to N.J.S.A. 9:2-7.1 for visitation rights with her granddaughter.
Crystal's father, plaintiff Richard Bennett, was divorced from the child's mother, defendant Cynthia Bennett (now
Cynthia Macomber), on January 14, 1974. Custody of the infant child was placed with defendant. Thereafter, Richard Bennett sought modification of the judgment to remove custody from defendant and place it in himself or his mother Rae Bennett Truax. Defendant's mother, Blanche Angell Haskell, intervened in that proceeding.
After lengthy negotiations the matter of custody was settled by an order filed June 1, 1976, consented to by plaintiff, defendant, Mrs. Truax and Mrs. Haskell, whereby custody was placed in Mrs. Haskell, with visitation rights established for plaintiff and defendant. Plaintiff received liberal visitation rights, including visitation on every other weekend, from Friday night to Sunday evening, inclusive, a three-week summer vacation with the child, and various holiday visits. Plaintiff's visitation rights, however, were to be exercised only at his mother's home.
Thereafter, Mrs. Truax and her husband went to the Haskell home to pick up the child. Plaintiff was (and still is) in California. Mrs. Haskell informed Mrs. Truax that she would in the future only turn the child over to plaintiff. Mrs. Truax thereafter filed a motion to "clarify" the order of June 1, 1976. As a result of this motion, an order was signed on September 20, 1976 providing that Mrs. Haskell "need not release the child to any person except plaintiff, Richard Bennett, for purposes of visitation, under the June 1, 1976 order of this Court."
Since plaintiff is in California and is therefore not available to exercise his own rights of visitation, Mrs. Truax filed the instant application for rights of visitation on her own behalf as a grandparent pursuant to N.J.S.A. 9:2-7.1.
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.
The trial judge denied Mrs. Truax' application "without prejudice." The transcript of the hearing indicates that the judge was of the opinion that the right of Mrs. Truax of visitation as a grandparent pursuant to the statute is "derivative" through her son, and since he did not exercise his right of visitation -- and indeed being in default in support payments he was not likely to come into New Jersey to exercise those rights -- the grandmother is barred from seeking visitation.*fn1 Specifically, the trial judge stated that if the son pays up the arrearages in support, the court would allow Mrs. Truax to have ...