For more than a decade, we have known that biological parents have certain constitutional protections that help them defend against grandparents or other third parties seeking visitation with their children.  In fact, in New Jersey, because a fit parent has a fundamental constitutional 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.

Some times, however, someone other than the biological parents have custody of children.  Often these people assume the role of "psychological parent."  A psychological parent is essentially a person whom a child considers to be his or her parent, even though that individual may not be biologically related to the child. Does a psychological parent have the same constitutional protections as a biological parent when dealing with a request by a grandparent for visitation?  Yesterday, in the case of Tortorice v. Vanartsdalen, a reported (precedential) decision released by the Appellate Division, the answer to that question was no.

In this case, the litigation involved the maternal grandparent, who had custody and claimed to be the psychological grandparent and the paternal grandparents who sought greater visitation.  In this case, the maternal grandmother argued for the premise there is parity created between legal parent and psychological parent which provides the psychological parent with the constitutional protections
enjoyed by a legal parent as to third parties.  In so arguing, she was relying on a case involving the lesbian partner of a biological parent who was given parity.  The Court distinguished the relationship be finding that the partner was invited to the realm of family privacy such that that parent’s right to autonomy is reduced by their own act.  This was not the case here, though interestingly, the court found that the psychological parent would now be in parity with the natural parents of the child (typically, because of constitutional considerations, natural parents have protections as to other parties as it relates to custody of children.)  In this case, the harm standard is not appropriate but rather, the best interest of the child standard must be used.

 

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

 

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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