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Barron v. Barron

Decided: April 1, 1982.


Imbriani, J.s.c.


[184 NJSuper Page 298] Are visitation rights of a noncustodial parent forfeited if not exercised for five years? Can visitation rights ever be abandoned? While our adoption laws permit the termination of parental rights where there has been intentional abandonment or substantial neglect by such parent, see N.J.S.A. 9:3-48(c), no case in New Jersey has ever terminated visitation rights simply because a parent has abandoned or neglected a child. Indeed, "[a]bsent serious wrong doing or unfitness, the right of visitation is strong and compelling." In re J.J.P.'s Adoption , 175 N.J. Super. 420, 430 (App.Div.1980).

The parties were married on October 12, 1970 and had two children, now ages 13 and 9 years. They initially separated in late 1973, resumed cohabitation for a short period and separated again in late 1974. Except for a three-month period in 1975 (when the children were placed in a foster home), the children always resided with their mother. The parties were divorced in 1975 and both remarried. The father did not see or support his children from the last separation in 1974 until 1979, when he sought and was refused visitation. He voluntarily withheld his request for visitation until the outcome of these proceedings. Thus, he last saw his children seven years ago, when they were six and two years old.

The father testified that between 1974 and 1979 he desired to see his children but he was unable to locate them. He said he made innumerable telephone calls to his mother-in-law seeking to locate his children, but she steadfastly refused to assist him and, indeed, did everything possible to discourage him from wanting to see the children. He offered no evidence, such as telephone bills, to confirm that such calls were made. His mother-in-law denied receiving any telephone calls.

While the parties were living together they resided in Piscataway, New Jersey. During the five-year absence (1974 to 1979) the wife continued to reside there and in the adjoining communities of Bound Brook or Middlesex. He resided initially in the Asbury Park area, then for two years with his parents in Massachusetts (the wife testified she met her in-laws twice and did not know where they lived or how to contact them), and finally in the Atlantic City area where he now resides.

The wife believes that he did not attempt to locate his children between 1974 and 1979, and argues that any father who fails without adequate reason to see and support his children for five years has abandoned them and should be forever denied visitation rights. She insists that it would be psychologically and emotionally harmful to the children to permit visitation at this time, and asserts that the children do not want to see their

father (which the children confirmed during an in camera interview with the court), have treated her new husband as their father and, as a result of this dispute, have become confused and upset, causing them to suffer headaches, upset stomaches, and extreme anxiety.

The father acknowledges that the children do not wish to see him and probably are fearful of resuming contact with him. But he insists that their attitudes have been influenced by their mother, either by commission or omission.

Courts have long exercised the power to resolve visitation disputes. The court in Baker v. Baker , 81 N.J. Eq. 135 (Ch.1912), said:

Where the parents are living separately either has a right to see any child which is in the custody of the other, and if the parties cannot agree the court will make such order in the premises as seems best under all the circumstances. [At 136]

Several reasons have been expressed for allowing visitation. Baker emphasized the desirability of permitting the noncustodial parent to ascertain if support payments are being properly administered, i.e. , whether the children are being properly fed, housed and clothed and if care is being taken to assure that they are receiving the best possible education and moral training. Id. at 137. A second reason was enunciated in Daly v. Daly , 39 N.J. Super. 117 (Cty.Ct.1956) (frequently cited for the proposition that a parent's duty to pay child support and the right of visitation are not interdependent):

Parental rights have always occupied an exalted position in our society. And since visitation rights are a diminishment of parental rights previously enjoyed, they naturally take on special ...

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