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Samuel Tortorice and Lorraine Tortorice v. Lynne Vanartsdalen

September 30, 2011

SAMUEL TORTORICE AND LORRAINE TORTORICE, PLAINTIFFS-RESPONDENTS,
v.
LYNNE VANARTSDALEN, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FD-04-1477-10.

The opinion of the court was delivered by: Espinosa, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued January 11, 2011

Before Judges Parrillo, Yannotti and Espinosa.

The opinion of the court was delivered by ESPINOSA, J.A.D.

This visitation dispute arises between plaintiffs, the child's paternal grandparents, and defendant, the child's maternal grandmother. Because a fit parent has a fundamental right to autonomy in child-rearing decisions, a grandparent who seeks a visitation order must show that visitation is necessary to avoid harm to the child. Defendant argues that because she is the child's "psychological parent," she enjoys the same right to autonomy and consequently, plaintiffs must satisfy an avoidance of harm standard before a visitation order may be entered. We hold that the status of "psychological parent" does not afford defendant such constitutionally mandated autonomy, that a best interest analysis applies to this dispute, and affirm the order granting visitation to plaintiffs.

J.S. ("Jason")*fn1 was born on July 8, 2005, to C.S. ("Cindy"). From the time he was born, Jason lived primarily with Cindy's mother, defendant Lynne Vanartsdalen ("Lynne"). Cindy suffered from drug abuse and had relapses in May and October 2006. In December 2006, a consent order was entered granting custody of Jason to Lynne until further order of the court.

In December 2006, Cindy's father, J.S. ("John"), and his current wife filed a complaint for custody. In March 2007, while that matter was pending, an order was entered declaring that plaintiffs' son, Samuel ("Sonny") Tortorice, was Jason's natural father. In April 2007, orders were entered granting grandparent visitation time to John and parenting time to Sonny.

The grandparent visitation order provided for John and his wife to have visitation with Jason every other weekend, one on a Saturday from 10:00 a.m. to 8:00 p.m. and including Cindy, and the next visit on a Sunday from 10:00 a.m. to 6:00 p.m. The order stated further that it was subject to modification if either parent requested increased custodial time.

Sonny was granted supervised parenting time. The order specified that plaintiff Lorraine Tortorice supervise the visitation. The first twelve visits would be for one day on alternate weekends and thereafter, Sonny would have one weekend per month from 10:00 a.m. on Saturday until 6:00 p.m. on Sunday. The order further provided that both Cindy and Sonny would be subject to random drug testing.

Sonny regularly exercised his parenting time for approximately six months. After suffering a relapse in October 2007, his visits became sporadic until March 2008, when he stopped having contact with Jason. It is undisputed that defendant permitted plaintiffs to have continuing contact with Jason although the parties disagree on how much was agreed upon.

In November 2009, plaintiffs filed a motion, and later, a complaint, seeking grandparent visitation. Plaintiff Samuel Tortorice ("Samuel") certified that plaintiffs had arranged with Lynne to see Jason for two and one-half hours every other weekend. He stated that plaintiffs had seen Jason for the past year and that Sonny was not present during those visits. However, Samuel stated that Lynne would not permit them to take Jason to their home in Philadelphia or anywhere outside New Jersey. He asked that visitation be expanded to a weekend visit from Saturday to Sunday, once a month, and one midweek visit from 4:00 p.m. to 8:00 p.m. per week. Samuel represented that Sonny would not be present for any overnight visits and further asked that he and his wife be added as parties to the action because Sonny was not exercising any parenting time with Jason.

Lynne filed a motion to dismiss the complaint. She denied there was a standing agreement limiting plaintiffs to two and one-half hours on alternate weekends and attested to her desire for Jason to have continuing contact with plaintiffs and the rest of Sonny's family, stating she included them in celebrations and activities involving Jason. However, she resisted the entry of an order as an infringement upon her right as Jason's "custodial parent" to "make all decisions concerning [Jason's] health and safety." She asked the court "not to take away [her] ability to juggle [Jason's] schedule so that he can ...


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