In a recent case, a mother’s parental rights were terminated over her 5 year old twins. An older sister (age 24) requested visitation from the foster mother who opposed it. The Trial Court and Appellate Court used a “best interests” of the child standard in determining the issue. In other words, they determined whether granting visitation to the older sibling was in the best interests of the child.

When this issue was brought to the Supreme Court (In the Matter of D.C. v. D.C., Minors), the standard was raised. It was determined that a sibling seeking visitation must prove by a preponderance of the evidence that denial of the visitation he/she seeks would result in harm to the child. This is the same standard now used for a grandparent seeking visitation.

The reason the standard had been raised was because it was determined that a parent, or a “psychological parent” (i.e., foster parent or other person who has assumed a parental role) has the fundamental right to autonomy in child rearing decisions. 

However, in an even more recent case (Tortorice v. Vanartsdalen – decided September 30, 2011), the Court has made a distinction between a natural parent and a psychological parent.  In a case between a natural parent (which includes a parent who has adopted a child) and a third party who is seeking visitation, the presumption of parental autonomy exists in favor of the natural parent.  But, if there is a dispute between a “psychological parent” and a third party, who wants visitation under the grandparent/sibling statute, then the Court must determine what is in the best interests of the child.


Maria Imbalzano is the Co-Chair of Stark & Stark’s Divorce Group in the Lawrenceville, New Jersey office. For questions, please contact Ms. Imbalzano: