A “Grandparent vs. Grandparent” Battle Over Child Visitation Rights

Tortorice v. Vanartsdalen, 422 N.J. Super. 242 (App. Div. 2011).  A fit natural parent has a fundamental right to autonomy in child-rearing decisions, so that a grandparent who seeks visitation rights must show that visitation is necessary to avoid identifiable harm to the child.  Here, because the parents of the child at issue had serious drug addiction problems, custody had been given to defendant, one of the grandparents.  Other grandparents, the plaintiffs, sought a visitation order.  Defendant resisted, arguing that although she was not a natural parent of the child, she was a “psychological parent,” to whom the same fundamental right to autonomy in child-rearing attached, and that plaintiffs had to show that identifiable harm would occur if they could not visit. 

The Family Part disagreed, and the Appellate Division, speaking through Judge Espinosa, affirmed.  Instead of having to show that identifiable harm would result unless they got visitation rights, plaintiffs needed to show only that visitation was in the best interests of the child.  That is because the “identifiable harm” standard applies only when the fundamental rights of a natural parent are being infringed upon by a visitation order.  The “best interests of the child” standard governs in cases, such as this one, where the custodial “parent” is not a natural parent.  Defendant’s reliance on V.C. v. M.J.B., 163 N.J. 200 (2000), for the idea that a “psychological parent” has the same broad right to autonomy over a child as a natural parent has, was misplaced.  The Family Part found that visitation on the schedule that the judge set was in the child’s best interests, and Judge Espinosa upheld that decision.