In a visitation dispute between a custodial maternal grandmother and paternal grandparents, the Appellate Division has recently rejected the custodial grandparent’s argument that because she is a psychological grandparent, she is entitled to the same “fundamental right to autonomy in child-rearing decisions”, including determining when and if the paternal grandparents visited with the child.

In Tortorice v. Vanartsdalen, the custodial maternal grandmother, the Defendant in the action, claimed that the lower court’s decision to grant the plaintiffs, the child’s paternal grandparents, a visitation schedule based upon a best interest analysis was wrong.  She claimed that the lower court’s ruling violated what she claimed to be her fundamental right to make autonomous decisions regarding the child’s rearing, including visitation/custodial decisions, which she claimed to have attained by being the child’s psychological parent. As the child’s psychological parent, Defendant claimed she was the equal of a child’s parents, therefore, was entitled to a presumption of parental autonomy, which in order to overcome, Plaintiffs were required to demonstrate via preponderance of the evidence that visitation was necessary in order to avoid harm to the child. This, she claimed, was the correct standard that the lower court should have followed, rather than the best interest analysis used.

In reviewing this matter, the Appellate Division discussed the test used to determine whether a third-party, who is not a natural parent of a child, has reached the status of psychological parent to the child, as well as New Jersey’s definition of a parent pursuant to N.J.S.A. 9:2-13(f).  The Court thereafter rejected Defendant’s argument, finding that the same was not supported by statute or case law.  Although the Court did not find that Plaintiff was the child’s psychological parent, assuming that she was, the Court went on to say that the fact that by her becoming the psychological parent the natural parents lost the autonomy above-referenced did not mean that the psychological parents gained the autonomy as it relates to others.  The Court found that her becoming a psychological parent placed Defendant in the same leveled playing in relation to the child’s natural parents upon their loss of their autonomy but that she did not gain the presumption of autonomy that the natural parents had lost to her.  Therefore, she is not entitled to the “necessity to avoid harm to the child standard”.