Can a maternal grandmother with legal custody, who is assumed to be the “psychological parent” of the child, deny visitation to the paternal grandparents?  The answer is “not if such visitation is in the child’s best interests” according to Tortorice v. Vanartsdalen, 27 A.3d 1247 (App.Div. 2011), a recent decision by the New Jersey Appellate Division.

In this visitation battle between maternal and paternal grandparents, the child lived primarily with the maternal grandmother from birth in July 2006.  The paternal grandparents had informal periodic visits with their grandson, but, in an effort to consistently spend more time with him, they filed a motion seeking one Saturday to Sunday weekend visit per month in addition to a weekly four-hour visit (between 4 P.M. and 8 P.M.).

The maternal grandmother protested such a rigid schedule being imposed upon her as she claimed to be the child’s “psychological parent,” thus giving her the parental autonomy and rights enjoyed by a natural or adoptive parent.  Under this argument, the maternal grandmother had the rights of an actual or adoptive parent, and the paternal grandparents could only gain custody if they could establish by a preponderance of the evidence, that their visitation is “necessary to avoid harm to the child.”  This standard would create a strong presumption in favor of parental decision making (or, in this case, grandparent decision making) and would likely have resulted in the paternal grandparents’ motion being rejected.

The paternal grandparents, on the other hand, argued that the maternal grandmother did not deserve the strong presumption afforded natural or adoptive parents.  Instead, they implored the court to adopt the standard used when no such parental decision making presumption existed: that the appropriate visitation schedule should be based on the “best interests of the child.” 

The court held that even assuming the maternal grandmother was the “psychological parent,” that only put her on a “leveled playing field in any custody or visitation dispute” with the natural parents of the child.  However, her status as “psychological parent” did not create any elevated presumption in disputes for custody and visitation rights between her and other third parties (here, the paternal grandparents).  Therefore, the court used the more lenient standard advocated by the paternal grandparents, and determined that the appropriate visitation schedule should be based on the “best interests of the child.”  Under that standard, the court affirmed the Family Part’s finding that periodic visitation by the paternal grandparents would be in the child’s best interests. 

In the end, all was not lost for the maternal grandmother, as the court did not grant the full amount of visitation time requested by the paternal grandparents. Instead, the court granted the paternal grandparents a weekend visit in July and August in addition to eight hours of visitation per month.