In re D.T.
In re D.T.
Opinion of the Court
The opinion of the court was delivered by
Defendants C. and D.J., the maternal grandparents of D.T., an infant, appeal from an order of the Chancery Division, Family Part, which awarded custody of D.T. to her natural father, plaintiff A.T. To afford D.T. a smooth transition to her new home and residence, the trial court ordered that plaintiff
The facts are fully recounted in the thorough letter opinion of Judge Nitto dated July 12, 1984, and need not be repeated here. It is sufficient to emphasize that plaintiff’s daughter, D.T., was born to him and his wife, P., on November 21, 1978. During the next five years the family lived in Belleville, New Jersey, and then in Wallington, New Jersey. They had frequent contact with defendants, who were the parents of P. and who resided in Paterson, New Jersey. Plaintiff testified that from the time of his daughter’s birth until the separation from his wife, he, his wife, and daughter saw the defendants almost every weekend. Sometime between February and April, 1983, plaintiff filed for divorce. The couple separated in August, 1983, although the circumstances of that separation were disputed in the record. Following the separation, P. took D.T. and moved in with her parents in Paterson. Plaintiff, after approximately a week, left the family apartment in Wallington and returned to his parent’s home in Pennsylvania, where he now resides.
On January 15, 1984, P. died as a result of injuries sustained in an automobile accident. P.’s brother notified plaintiff, who left Pennsylvania to attend his wife’s funeral. On the same day as his wife’s burial plaintiff approached D.T.’s grandmother, D.J., and “asked if ... [he] could take [D.T.].” According to plaintiff, D.J. replied that “she would rather ... [he] didn’t.” Defendants, however, did not have legal custody of D.T. pursuant to any court order. They simply stood in loco parentis to the child by virtue of the fact that the child continued to reside with them and they voluntarily undertook the responsibility to care for her.
We are satisfied from our study of the record and the arguments presented that the trial court properly awarded
Moreover, even assuming as defendants contend that the applicable test is whether the best interests of the child would be served by a custody award to a third person and that neither a finding of parental unfitness nor abandonment under N.J.S.A. 9:2-9 is a prerequisite to entry of such an order, see Hoy v. Willis, 165 N.J.Super. 265, 272 (App.Div. 1978); cf. E.T. v. L.P., 185 N.J.Super. 77, 81 (App.Div. 1982),
The strong presumption favoring the natural parent’s right to the custody of his or her minor children therefore constitutes judicial recognition that, in most instances, the child’s best interests will be maximized by placing the child with his or her natural parent. In the circumstances of this case, we agree with the trial court that the defendant-grandparents are not entitled to the custody of the infant D.T. as against D.T.’s natural father, the plaintiff, who has shown no intent to abandon her and who is clearly not an unfit parent.
The other issues raised by defendants are clearly without merit and require no further explanation. R. 2:11-3(e)(1)(E).
Accordingly, the custody order under review is affirmed.
N.J.S.A. 9:2-9 provides:
When the parents of any minor child or the parent or other person having the actual care and custody of any minor child are grossly immoral or unfit to be intrusted with the care and education of such child, or shall neglect to provide the child with proper protection, maintenance and education, or are of such vicious, careless or dissolute habits as to endanger the welfare of the child or make the child a public charge, or likely to become a public charge; or when the parents of any minor child are dead or cannot be found, and there is no other person, legal guardian or agency exercising custody over such child; it shall be lawful for any person interested in the welfare of such child to institute an action in the Superior Court or the Juvenile and Domestic Relations Court in the county where such minor child is residing, for the purpose of having the child brought before the court, and for the further relief provided by this chapter. The court may proceed in the action in a summary manner or otherwise.
Defendants contend that the trial court failed to consider the best interests of the child in resolving the question of custody. More specifically, they argue that unfitness under N.J.S.A. 9:2-9 is the appropriate criterion only where the issue presented pertains to severance or termination of parental rights. However, in view of our decision we need not resolve this issue in this case.
Although plaintiff did not refer to N.J.S.A. 9:2-5 and the trial court did not cite the statute in its written opinion, plaintiff should have sought custody of his child under this provision. N.J.S.A. 9:2-5 implicitly recognizes the inherent right of the non-custodial parent to the reversion to his or her custody of the children born of the marriage upon the custodial parent’s death and the satisfaction of the statutory conditions. The statute, which offers little guidance as to the appropriate standard for the court to apply in making a custody determination thereunder, reads as follows:
In case of the death of the parent to whom the care and custody of the minor children shall have been awarded by the Superior Court, or in the*176 case of the death of the parent in whose custody the children actually are, when the parents have been living separate and no award as to the custody of such children has been made, the care and custody of such minor children shall not revert to the surviving parent without an order or judgment of the Superior Court to that effect. The Superior Court shall have the right, in an action brought by a guardian ad litem on behalf of the children, to appoint such friend or other suitable person, guardian of such minor children, and shall have the right to remove such guardian, and to appoint a new guardian or guardians, and to make such judgments and orders, from time to time, as the circumstances of the case and the benefit of the children shall require.
Reference
- Full Case Name
- IN THE MATTER OF D.T., AN INFANT
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- Published