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Becker v. Becker

Decided: November 19, 1992.

NHAT BECKER, PLAINTIFF,
v.
SANDRA DAWN BECKER AND MICHAEL KRAIL, DEFENDANT



Schlosser, P.J.F.P.

Schlosser

This matter comes before the court pursuant to an application for grandparental visitation and for other relief. Only the application for grandparental visitation will be determined at this time.

The plaintiff is the maternal grandmother of a child born on January 11, 1992 as a result of a relationship between her daughter, a defendant, who is currently 16 years old and not emancipated and her daughter's boyfriend, the co-defendant, who is also 16 years old and not emancipated.

The defendants and the minor child have resided with the paternal grandparents since July 1992 although plaintiff's daughter also lives at home with plaintiff several nights each week. The reason for plaintiff's application is that the minor child is not brought home during the time when the daughter returns to plaintiff's house.

Does a court of this State have authority to grant to a grandparent the right of visitation over the objection of the natural parents when none of the circumstances prescribed in N.J.S.A. 9:2-7.1 exist, but when the parents themselves are unemancipated minors and the defendant mother does not live separate and apart from her mother on a full-time basis?

N.J.S.A. 9:2-7.1 provides as follows:

"Where either or both of the parents of a minor child, residing within the 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, or any sibling of the child 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, grandparents or sibling in respect to such child."

Prior to the enactment of this statute, under the common law, grandparents had no independent rights to visitation. Mimkon v. Ford, 66 N.J. 426, 332 A.2d 199 (1975).

It is interesting to note that while N.J.S.A. 9:2-7.2 refers to "any husband and wife", N.J.S.A. 9:2-7.1 refers only to "parents".

The plaintiff has argued that the narrow interpretation of the statute is inapplicable because the defendants do not constitute a family unit. The term "family unit" is not a statutory one but one which does require further attention.

In Thompson v. Vanaman, 212 N.J. Super. 596, 515 A.2d 1254 (App.Div.1986), the court stated: "Thus, when a grandparent has lost the derivative rights to contact with the grandchildren due to disruption of the family unit (emphasis supplied) caused by death, divorce, or separation, the Legislature has provided a vehicle for grandparent to gain visitation rights". In the absence of that disruption, the grandparent has no independent cause of action for securing visitation rights. See also Pullman v. Pullman, 234 N.J. Super. 383, 387, 560 A.2d 1276 (Ch.Div.1988); In re Goldfarb, 6 N.J. Super. 543, 547, 70 A.2d 94 (Ch.Div.1949).

The United States Supreme Court has deemed that limiting a definition of "family unit" to only those couples that are legally bound by marriage is unconstitutional. In Stanley v. Illinois, 405 U.S. 645, 652, 92 S. ...


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