Can Adult Children Visit Their Dying Mother, if Her Second Spouse (who is POA) Says “No”

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a New Jersey Hospice Law Attorney

Recently our office was engaged to represent the children of KL, a dying parent under hospice in an action seeking to establish visitation despite the objections of their mother’s spouse ML. As part of our engagement, we were required to file a Verified Complaint and Order to Show Cause with Temporary Restraints with the County Chancery Court as an emergent request.

KL was diagnosed with terminal brain cancer several weeks ago. Medical opinions give her several weeks to live but it is not expected that she will last more than several months.   Her lucidity is sporadic and every day, every hour, is valuable. The plaintiffs, her children from a prior marriage, were disallowed visiting her in her husband’s home.   The Defendant spouse has used his position as property owner – the house is titled in his name alone – to prohibit plaintiffs from attending to their mother on her deathbed or from speaking to her on the telephone. He did not interfere with Mom’s medical decision making and continued to honor her wishes except for allowing her to see her children and grandchildren.

The legal issue before the court was difficult to capture and put into words. The Verified Complaint charged the defendant with tortious interference with family relationships. Plaintiffs, adult children of a dying woman, sought to enjoin their stepfather from blocking their visits. This type of case is not a recognized, run-of-the-mill cause of action in New Jersey. Even still, the Courts of this State have examined this issue in a case very close to this one entitled Shambaugh v. Wolk, 302 N.J. Super 380 (1996).

In that case, the plaintiff, a 53-year-old daughter, sought visitation access with her 75-year old mother in a nursing home after the defendant stepfather put the adult daughter on the “no contact” list. The Court in Wolk noted that Mrs. Wolk was married to the defendant for 42 years. In the end, the Court sided with the adult daughter being allowed access to her mother over the stepfather’s objections.

The Wolk Court analyzed the intersection of the husband’s rights and the daughter’s rights, and had to make its decision without the testimony of the mother/wife due to her alleged incapacity. The Wolk court looked to another New Jersey case for guidance and articulated that “…our Supreme Court (New Jersey) has recognized as a fundamental interest the relationship between parents and their children.” The Court went on to hold that “the marital state is in its very nature superior but not so exclusive and forbidding as to work a severance, unreasonably and arbitrarily, of all communion between the wife and her near of kin.” Id at 477.

In our case the plaintiffs applied to the Court to obtain an Order recognizing their fundamental right to visit with their dying parent.   It is that right to be with a dying parent that is among the most precious of gifts, we believe. In the end, we will prevail.

To discuss your NJ hospice matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office.

 

Posted in Hospice.