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Shambaugh v. Wolk

July 31, 1996


Batten, Raymond A., J.s.c.

The opinion of the court was delivered by: Batten



These pre-trial cross-motions for summary judgment require this court to determine whether there presently exists constitutional, statutory and/or common law authority as would entitle, under the facts stipulated herein, plaintiff Gertrude Shambaugh, the 53 year-old stepdaughter of the defendant William Wolk, to visitation with her natural mother who is 75 years of age, married to defendant and currently resident in a convalescent home. To the extent that such authority does exist, the court is further asked to balance the competing interests of the defendant stepfather, married 42 years to plainitiff's mother, with the interests of plaintiff in maintaining visitational access to her mother. There is no reported opinion in this or any other state which resolves these issues. As such, this case is one of first impression. *fn1


Plaintiff's motion seeks an order of the court granting plaintiff liberal and reasonable visitation with her mother, including the right to remove her mother from a convalescent center, for short periods of time. In her initial certification, plaintiff explains that she is the step-daughter of the defendant and the natural daughter of defendant's wife, Margaret Wolk, who is 75 years of age and is currently residing in Courthouse Convalescent Center, situated in Cape May Court House, New Jersey. Plaintiff is the oldest of the two (2) children born to Margaret Wolk during her first marriage. Ms. Wolk married defendant on October 24, 1953; a daughter, Carole, approximately 40 years of age, was born of this marriage. Ms. Wolk also has four (4) sisters and two (2) brothers.

Plaintiff claims to have had a close relationship with her mother. For at least three (3) years, Ms. Wolk has been exhibiting memory loss, the extent and effect of which plaintiff claims, have been minimized by defendant who, when questioned by family members, attributes this conduct to just short term memory loss.

In October 1995, and without prior notification to family members, defendant had Ms. Wolk committed to the Atlantic City Medical Center's Psychiatric Unit. Defendant notified Ms. Wolk's sister that Ms. Wolk was admitted to a mental hospital and was not to have any visitors. Family members, including plaintiff later discovered the whereabouts of Ms. Wolk and upon contacting the hospital learned Ms. Wolk was, in fact, allowed visitors. *fn2 Within a few days of the hospitalization, defendant threatened plaintiff that if any family members attempted to see Ms. Wolk, they would not only be stopped but would never see her again.

On October 13, 1995, plaintiff attempted to visit her mother and was advised by staff that, pursuant to instructions by the defendant, she was not permitted to visit Ms. Wolk nor be provided any information pertaining to her mother. The next day, plaintiff telephoned the hospital and was told that any calls regarding her mother would be referred to defendant. She immediately retained counsel who requested that defendant permit plaintiff to visit with her mother. Defendant's counsel thereupon advised that (1) Ms. Wolk had been transferred to Courthouse Convalescent Center in Cape May Court House and (2) the issue of visitation by family members would abide evaluation by Dr. Robert Beitman. Thereafter, for a period of approximately two (2) months, plaintiff visited with her mother on a regular basis but only within the confines of the convalescent home.

In December 1995, plaintiff requested permission to visit with Ms. Wolk beyond the grounds of the Center for walks, meals, social events and overnight visits. Defendant denied the request and has maintained ongoing objection thereto. Plaintiff thus seeks an order permitting her such visitation on the assumption that her mother consents thereto and, to plaintiff's knowledge, has yet to express disapproval or any concerns at all about the quantum and consequence of such visitation.

Defendant cross-moves for an order for summary judgment dismissing plaintiff's complaint for lack of jurisdiction. He certifies that he and his wife have been married for 42 years, he visits her daily, and plaintiff at age 18, left home, as a result of which their relationship became strained. In 1980, a "small feud" erupted consequent to the death of Ms. Wolk's mother; ever since, there has been virtually no contact between plaintiff and her mother. Throughout this period of time, defendant and Ms. Wolk maintained their close and loving relationship as well as their relationship with their own daughter. Defendant claims to have done everything for Ms. Wolk from "shopping" to "finances".

The effects of Alzheimers Disease upon Ms. Wolk, at present, include conduct which defendant describes as child-like. Placement of Ms. Wolk in a nursing home was the consequence of defendant's age, "poor health" *fn3 and his inability to handle the periodic crises that befell his wife. Ms. Wolk "is lucid maybe 5 days per week" and has "sundown syndrome" that leaves her confused by the end of the day. She enjoys defendant's visits and has expressed her desire not to go out with plaintiff and her sister. He states that twenty-five percent (25%) of the time Ms. Wolk does not remember the family tensions and welcomes any family member, causing her emotional unrest when she is taken out of her setting. Defendant thus objects to Ms. Wolk being removed from the nursing home by plaintiff. While he has no objection to plaintiff visiting Ms. Wolk for brief periods in the nursing home, he strongly objects to her removal from this facility. Ms. Wolk has executed a general power of attorney, designating defendant as attorney-in-fact, and a will, designating defendant sole heir to her estate. Accordingly, he feels that he has the authority to determine the issue of visitational access to Ms. Wolk.

By way of reply, plaintiff submits the certification of Dr. Robert G. Beitman, Ms. Wolk's treating physician, indicating his professional opinion as to Ms. Wolk's mental competency to determine, for herself, the extent of her relationship with plaintiff.


Defendant argues, fundamentally, that the court lacks jurisdiction to grant the relief now sought by plaintiff and is therefore without authority to tell Mr. and Mrs. Wolk, after forty-two (42) year's of marriage, whom they may visit and under what circumstances visitation may be conducted, noting that the statutory authority for visitation, as a corollary to custody, applies to a parent and an unemancipated minor - not a parent and adult son or daughter. N.J.S.A. 2A:34-28 through -52; N.J.S.A. 9:2-1 through -21; N.J.S.A. 2A:4A-21 through -62; N.J.S.A. 30:4C-11 through -24.

Plaintiff responds, asserting the court's jurisdiction to consider and grant the relief sought by plaintiff pursuant to the language of R. 5, part V, and reported case law historically interpreting the equitable power of the Chancery Division to consider the issues herein raised, citing Leith v. Horgan, 13 N.J. 467, 100 A.2d 175 (1953); The "Historical and Organizational Note" to Part V of the New Jersey Court Rules (R. 5:1-1); Belgacem v. Veneziano, 218 N.J. Super. 6, 526 A.2d 1090 (App.Div. 1986); Westinghouse Electric Corporation v. United Electric, Radio and Machine Workers of America, 139 N.J. Eq. 97, 108, 49 A.2d 896 (E. & A. 1946); Graf v. Hope Building Corporation, 132 Misc. 352, 229 N.Y.S. 455 (N.Y. Sup. 1928), aff'd, 226 A.D. 787, 234 N.Y.S. 803 (N.Y. App. Div. 1 Dept. 1929), rev'd, 254 N.Y. 1, 171 N.E. 884, 70 A.L.R. 984 (N.Y. 1930); Griswold v. Hazard, 141 U.S. 260, 35 L. Ed. 678, 11 S. Ct. 972 (1891). Plaintiff specifically argues that the Superior Court of New Jersey, Chancery Division, Family Part, has jurisdiction over all family actions. This grant of jurisdiction has been interpreted in the broadest and most inclusive sense. R. 5:1-2(a). Plaintiff asserts that in addition to having authority over a parent's application to ensure visitation rights with a child, the court also has authority to decide an application by an adult child to protect his or her visitational relationship with a consenting parent.

Defendant counters plaintiff's argument, however, claiming that reliance upon the rules is misplaced. These rules were enacted by the Legislature to establish court procedure; they do not create jurisdiction where it did not previously exist. In this case, defendant argues, plaintiff is seeking to invade the constitutional right of defendant and Ms. Wolk to privacy, a legal right which does not fall within the court's general equity jurisdiction.

Given the unique nature of the right herein asserted by plaintiff that being, the right of an adult daughter to visitational access to her natural mother, a review of relevant case law both within and beyond this slate specifically as relates to the nature of the relationship between a parent and child or, as here the case adult daughter, is of value.


Interestingly, attainment of majority age and or emancipation is not determinative to the existence or termination of the legal relationship between a parent and child in all cases and may be, in certain cases, wholly irrelevant. The historical and progressive expansion of judicial doctrine in this regard transcends age, evolving and resolving around the nature of the relationship asserted. While the relation of parent and child, for example, usually terminates when the child reaches the age of majority or when the parent dies, the relation may, in some respects, continue beyond attainment of majority or death of the parent. Only the legislature can determine when and in what respects the relation of parent and child ceases, Wilson v. Anderson, 232 N.C. 212, 59 S.E.2d 836 (1950), reh'g den., 232 N.C. 521, 61 S.E.2d 447 (1950), and a statutory enumeration of the instances when the authority of a parent ceases excludes other instances; In re Reinhardt, 88 Mont. 282, 292 P. 582 (1930).

The rights and obligations growing out of the relation of parent and child do not necessarily continue until, or terminate on, the child's attainment of majority, Brown v. Ramsay, 29 N.J.L. 117 (Sup.Ct. 1860), and by the consent of the parties they may be terminated before, Brown v. Ramsay, supra., or continue in full force after such time; Emery-Bird-Thayer Dry Goods Co. v. Coomer, 87 Mo. App. 404 (Mo); Brown v. Ramsay, supra. The relationship created by birth is, in a sense, permanent, Bryant v. Thrower, 239 Ark. 783, 394 S.W.2d 488 (1965), and some of the rights of the parties may continue even though the child has attained majority or has married, even where there is no agreement on the subject; Leith v. Horgan, supra; Bickford v. Bickford, 83 Misc. 2d 571, 371 N.Y.S.2d 782, N.Y.S. 2d 782 (N.Y. Fam. Ct. 1975), rev'd. 55 A.D.2d 719, 389 N.Y.S.2d 430 (N.Y. App. Div. 3 Dept., 1976). For whatever the duration of the relation, however, its most fundamental consequence is parental right to custody of the child. *fn4 The common law right to visitation, a derivative of parental custody, has historically applied only to natural parents of the child involved or those standing in loco parentis. *fn5 Our legislature has granted standing to siblings and grandparents of a child to "apply" to the Superior Court for such visitational rights, if any, "as the best interest of the child may require." N.J.S.A. 9:2-7.1. There exists, however, no statute, in this state, as argued by defendant, which expressly creates a right of ...

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