SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-966-98T3
V.C.,
Plaintiff-Appellant,
v.
M.J.B.,
Defendant-Respondent.
_________________________________________________________________
Argued December 16, 1998 - Decided March 5, 1999
Before Judges Stern, Braithwaite and Wecker.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Essex
County.
Robin T. Wernik argued the cause for appellant
(Granata, Wernik & Zaccardi, attorneys; Ms.
Wernik, of counsel and on the brief).
Anne W. Elwell argued the cause for respondent
(Elwell and Albino, attorneys; Ms. Elwell, on
the brief).
Brief was filed by amicus curiae American Civil
Liberties Union of New Jersey, American Civil
Liberties Union Foundation, Lambda Legal Defense
and Education Fund, National Center for Lesbian
Rights and Lambda Families of New Jersey (David M.
Wildstein of Wilentz, Goldman & Spitzer, attorney;
David Rocah, American Civil Liberties Union of New
Jersey, and Michael Adams, Leslie Cooper and
Matthew Coles, ACLU Foundation, on the brief).
The judgment of the court was announced in an opinion by
STERN, P.J.A.D.
Plaintiff appeals from a judgment of the Family Part entered
on September 18, 1998 which denied her request for joint legal
custody of J.B. and J.M.B, "terminated" her visitation with the
children and "cease[d] immediately" "all further contact between
the plaintiff and the children of defendant." We denied a stay
but accelerated the appeal.
Before us plaintiff V.C. argues that the denial of joint
custody and visitation "where it is indisputable that [she] was a
psychological parent of J.M.B. and J.B. was reversible error,"
that the denial of both was "contrary to the children's best
interest" and that "the court erred in not finding that it is in
the best interest of the children for [her] to be granted
parental rights and that [defendant] M.J.B. should be estopped
from denying V.C. these rights." For the reasons stated in this
opinion and Judge Braithwaite's opinion, we affirm the judgment
denying plaintiff's application for joint custody. For the
reasons stated in this opinion and the opinion of Judge Wecker,
we reverse the order denying her request for visitation.
Plaintiff and defendant are women who maintained a lesbian relationship lasting almost four years. The critical facts were well stated by the trial judge:See footnote 1
The plaintiff, V.C., and defendant, M.J.B., first met during 1992, and began to date on July 4, 1993. Five days later, on July 9th, M.J.B. began to see fertility doctor, Patricia Hughes, for the purpose of becoming pregnant through artificial insemination. In preparation for this first appointment, M.J.B. had to record her body temperature for eight to nine months prior, so as to enable Dr. Hughes to track her ovulation schedule. Later, in September 1993, V.C. became aware of M.J.B.'s visits to Dr. Hughes and her decision to have a baby via artificial insemination.
As part of the preparation for becoming
artificially inseminated, a sperm donor had
to be selected. According to V.C., the
decision about the sperm donor had been a
private one made by herself and M.J.B.
However, testimony in court indicated M.J.B.
had discussed this decision with almost
everyone she came in contact with during the
time. Additionally, the testimony portrayed
M.J.B. as having been the one to make the
final decision about which sperm donor to
use.
Between November 1993 and February 1994,
M.J.B. went through several Intrauterine
Insemination procedures, and, on February 7,
1994, M.J.B. was informed she was pregnant.
During M.J.B.'s pregnancy, both M.J.B. and
V.C. prepared for the birth of the twins,
J.A.B. and J.M.B. The parties moved from
M.J.B.'s apartment, where they had been
living together since December 1993, into a
larger apartment which would be able to
accommodate all four of them. V.C. and
M.J.B. also prepared wills, powers of
attorney, named each other as the beneficiary
for their respective life insurance policies
and opened a joint checking account for their
household expenses. The parties also decided
to have the children call M.J.B. "Mommy" and
V.C. "Meema."
V.C. was very involved during M.J.B.'s
pregnancy. V.C. attended all Lamaze classes
with M.J.B. and was present in the delivery
room when the children were born on September
29, 1994. After the children's birth, M.J.B.
took three months maternity leave, and V.C.
took three weeks vacation time.
The decision about which pediatrician
and day care to use were researched and made
by M.J.B. but, in each instance, M.J.B.
brought V.C. to visit the place she had
selected. Also, M.J.B. listed V.C. as the
"other mother" on the children's pediatrician
and day care registration forms.
In February 1995, V.C. and M.J.B.
jointly purchased a house and, later that
year, the two were "married" in a commitment
ceremony. The children were present at the
ceremony and, at the conclusion of the
ceremony, V.C., M.J.B. and the children were
blessed as a family. At some point, the
parties also opened savings accounts for each
of the children and named V.C. as the
custodian for one account and M.J.B. the
custodian for the other. After the children
were born, the parties talked about V.C.
adopting the children, but were advised to
wait until the children were older. In June
1996, the parties went to see an attorney
regarding V.C. adopting the children. During
this meeting, M.J.B. gave the attorney a two
thousand dollar retainer and the parties were
instructed to get letters from friends and
family indicating V.C., M.J.B., and the two
children functioned as a family. Neither
party actively pursued getting the letters or
proceeding with the adoption.
Two months later, in August 1996, M.J.B.
ended her relationship with V.C. From August
until November 1996, the parties took turns
living in the house with the children. By
December V.C. had moved out, but spent
approximately every other weekend with the
children. During this time V.C. contributed
money towards the children's expenses. In
May 1997, M.J.B. left the children with V.C.
for two weeks while M.J.B. was away on
business. At some point on or around this
time, M.J.B. stopped accepting money from
V.C. for the children.
Since the dissolution of the
relationship between the parties, both women
have become involved with new partners.
M.J.B. and the children presently live with
M.J.B.'s new partner, and V.C. is currently
living with her new partner.
The trial judge also carefully detailed additional testimony of
the fact witnesses offered by the respective parties:
During the trial, V.C. asserted she and
M.J.B. had jointly decided to have the
children. V.C. testified she and M.J.B., as
a couple, decided which sperm donor to use
and later what the children should be named.
V.C. presented cards and letters given to her
by M.J.B. during their relationship which
referred to V.C. as a mother to the children
and the four of them as a family. V.C. also
testified she and M.J.B. were co-parents and
each of them had an equal share of parenting
responsibilities. According to V.C., both
parties were involved in all aspects of
decision-making regarding the children.
Also, V.C. testified she and M.J.B. had
discussed changing the children's last name
to a hyphenated form of both women's names,
and planned for V.C. to adopt the children.
According to V.C., even after the parties
separated, M.J.B. had indicated she was still
willing to go forth with the adoption.
V.C.'s mother, [S.D.], corroborated much
of V.C.'s testimony. Ms. [D.] testified
M.J.B. had told her both parties would be co-parents to the children. According to Ms.
[D.], M.J.B. had said she (M.J.B.) and
V.C.jointly made the decision to have the
children and the children would belong to
both parties. Additionally, Ms. [D.]
testified M.J.B. and V.C. undertook equal
parenting roles and functioned as a family
after the children were born. Ms. [D.] also
said the children referred to her as
"Grandma" and were very attached to V.C.'s
family.
[L.M.] also testified on behalf of V.C.
Ms. [M.] indicated she had known and worked
with M.J.B. for many years prior to having
met V.C. Ms. [M.] testified to having spent
time with the parties before, during and
after M.J.B.'s pregnancy and the subsequent
birth of the children. She remembered having
regarded both M.J.B. and V.C. as equal
parents to the children while the parties
were together. According to Ms. [M.], after
the parties separated, M.J.B. told her she
(M.J.B.) planned to maintain the relationship
between the children and V.C.
[D.B.], who also worked with M.J.B.,
testified for V.C. According to Ms. [B.],
M.J.B. indicated she (M.J.B.) intended to
maintain the relationship between the
children and V.C. so long as V.C. continued
to contribute money toward the children's
expenses. Ms. [B.] also remembered having
heard V.C. refer to herself as a parent to
the children, and maintained she too viewed
V.C. as being the children's co-parent.
M.J.B. testified to having encouraged a
loving relationship between V.C. and the
children, but denied having made the decision
to get pregnant with V.C. According to
M.J.B., she had planned to be artificially
inseminated since the late 1980's, and had
already decided to go ahead with it prior to
becoming involved with V.C. She acknowledged
having talked to V.C. about the sperm donor
and the children's names, but said she also
talked about those decisions with almost
everyone she came in contact with during the
time she was making those decisions. M.J.B.
was adamant about having made all final
decisions regarding the children.
M.J.B. remembered having thought of the
children as theirs (M.J.B.'s and V.C.'s) at
times, but at other times thought of the
children as hers alone. M.J.B. did
acknowledge having thought of the four of
them as a family while the relationship was
intact. According to M.J.B., V.C. spent a
lot of time and assumed a great deal of
responsibility with the children, but added
V.C. was more her helper than a co-parent.
When asked about the potential adoption of
the children by V.C., M.J.B. said she had
considered it and had consulted an attorney
with V.C. about it, but in the end, decided
she was not comfortable with V.C. adopting
her children. M.J.B. acknowledged the loving
relationship the children have with V.C., but
also maintained she did not want the children
to continue this relationship with V.C.
M.J.B. said she, the children and her new
partner were a family now.
[A.R.] testified on behalf of M.J.B.
Ms. [R.] confirmed M.J.B. had been interested
in becoming artificial[ly] inseminated for
years prior to having met V.C. Ms. [R.]
remembered M.J.B. having decided to proceed
with the artificial insemination process
prior to the commencement of M.J.B.'s
relationship with V.C. Ms. [R.] did not
remember whether she had ever heard V.C.
refer to herself as a parent to the children,
but did acknowledge V.C. having played an
important role in the children's lives when
the parties were together. However,
according to Ms. [R.], V.C. would usually
only share in the household responsibilities
when M.J.B. would ask her to, and not usually
upon her own initiative.
[M.I.] also testified on M.J.B.'s
behalf. Ms. [I.] testified to having known
M.J.B. prior to meeting V.C. She recalled
conversations she had had with M.J.B. about
M.J.B. becoming pregnant via artificial
insemination years before M.J.B. and V.C.
became involved. Ms. [I.] did not recall
ever having heard V.C. refer to herself as a
parent to the twins either before or after
their birth, and did not know of M.J.B.
having regarded V.C. as a co-parent to the
children.
Before reaching his conclusion, the trial judge also set forth
the expert testimony admitted into evidence:
Both parties had expert witnesses
testify on their behalf. Dr. Allwyn J.
Levine testified on behalf of the plaintiff,
and Dr. David Brodzinsky testified for the
defense. Both experts came to very similar
conclusions after having examined both women
and the two children. Each expert examined
V.C. and M.J.B. individually and with the
children as well as having interviewed the
children individually.
After conducting his examination, Dr.
Levine concluded both children view V.C. as a
maternal figure and V.C. views the children
as her own. Dr. Levine compared the
relationship between V.C. and M.J.B. to a
heterosexual marriage and said the children
would be affected by the loss of V.C. in the
same way children would be impacted if denied
access to one parent after a divorce. He
emphasized the benefit the children received
and would continue to receive via the bonded
relationship with V.C. Dr. Levine also
testified as to the potential impact to the
children's self-esteem by feelings of
abandonment if they lost V.C. as a maternal
figure. However, because the children are
only three and a half and have lived apart
from V.C. since they were two, Dr. Levine
felt, the children would, if necessary,
probably recover from the loss of V.C. Dr.
Levine also acknowledge[d] the animosity
between V.C. and M.J.B. as potentially
detrimental to the children, but suggested
counseling as a possible solution to
improving relations between the parties.
Similarly, Dr. Brodzinsky found a bonded
relationship to exist between V.C. and the
children, which has been beneficial to the
children. During his interviews with the
children, they said they regarded V.C. as
being a part of their family, which Dr.
Brodzinsky said was normal for children of
their age to express about a person with whom
they have spent such a considerable amount of
time. Dr. Brodzinsky felt the children may
stop viewing V.C. as being a family member as
they get older and learn more about
biological relationships. Dr. Brodzinsky
agreed it would be ideal for the children to
maintain the bonded relationship with V.C.,
but feared the children would continue to be
caught in the middle given the animosity
between the parties. Dr. Brodzinsky agreed
with Dr. Levine about the short-term distress
the children would probably feel at the loss
of V.C., but also felt the children would
likely recover without any permanent damage.
Dr. Brodzinsky disagreed with Dr. Levine
about how the relationship between V.C. and
M.J.B. should be viewed. Dr. Brodzinsky felt
the loss of V.C. was not comparable to the
loss of a parent in a heterosexual divorce
because, in a heterosexual relationship,
society would reinforce the expectation for a
relationship to continue between a child and
parent post-divorce, whereas no similar
expectation would exist for the relationship
between V.C. and the children.
Dr. Levine testified that "because the children were
basically parented from birth" by plaintiff and defendant "until
they physically separated," the children "see them as inter
changeable maternal mothering objects" and "have established a
maternal bond with both of the women." With regard to the
animosity between the parties,See footnote 2 Dr. Levine testified that the
party who cannot set aside her anger towards a former spouse or
lover should obtain counseling or therapy as opposed to depriving
the children of the relationship with a parent. Dr. Brodzinsky
indicated that continued animosity between the parties would
negatively impact on the children, but also noted that counseling
or therapy would help reduce the animosity. Neither expert
suggested denying visitation to a parent based on animosity
between the parties. Dr. Brodzinsky indicated that "I have
seldom worked in a divorce situation where there isn't some
ability to reduce animosity." He testified that "[t]he ideal
situation is that Miss B is allowed to get on with her life as
she wants, but to the extent possible that ... these children be
able at times to have some contact with Miss C who's important to
them." His recommendation was "[a]ssuming reasonable
relationships between the adults at least reasonably amicable,
that [the children] would probably benefit from ongoing contact
as they would with any person with whom they have a good solid
relationship that can nurture them."
The trial judge denied plaintiff's application for custody, concluding that "while there is evidence in the present case of the plaintiff enjoying a bonded relationship with the children, the plaintiff has failed to establish the relationship to have risen to the level of in loco parentis." He wrote:
The decision to have the children was clearly the defendant's rather than a joint decision by both parties. At the time V.C. and M.J.B. first began to date, defendant had not only made an appointment with a doctor to begin the artificial insemination process, but had collected at least eight months worth of information so as to enable the doctor to track her ovulation pattern. Additionally, testimony from the defendant and other witnesses confirmed the medical evidence of the defendant's intention to undergo artificial insemination prior to the beginning of her relationship with the plaintiff.
Both experts testified as to the strong
bonded relationship between the plaintiff and
the children, but this relationship was not
proven to go so far as to establish the
plaintiff as a "psychological parent" to the
children. Both reports indicate the children
view the defendant's new partner as similar
to the plaintiff and neither report has
either child independently identifying the
plaintiff as their mother when asked who
their mother is. Given the level of
importance surrounding the issue of custody
of children, and the lack of definitive
evidence, this Court is unwilling to impute a
relationship of psychological parent upon the
plaintiff. The present case lacks the kind
of clear parental relationship between the
plaintiff and the children which was present
in other cases where a claim of psychological
parent was successfully argued. See Matter
of the Guardianship of J.C., J.C., and
J.M.C., Minors,
129 N.J. 1 (1992); Hoy v.
Willis,
165 N.J. Super. 265 (App. Div. 1978);
A.S. v. B.S.,
139 N.J. Super. 366 (Ch. Div.
1976).
Because the plaintiff failed to prove
she stood in loco parentis and, functioned as
a psychological parent to the children, this
Court cannot proceed to analyze the present
custody case under the best interest test.
Absent a showing of plaintiff having acted in
loco parentis, the Court would only be able
to consider the plaintiff's petition for
custody if the plaintiff was able [to] prove
the defendant to be an unfit parent. As this
has not been alleged, nor is there any
evidence to substantiate such a claim, the
plaintiff's motion for joint legal custody
must be denied.
The trial judge also denied plaintiff the privilege of
visitation because an in loco parentis relationship with a
stepchild "terminate[s] once the relationship between the adults
is ended." Under the test adopted by the Wisconsin Supreme Court
in Custody of H.S.H.-K.,
533 N.W.2d 419 (1995), the trial judge
found plaintiff had established a "bonded," but not a "parental,"
relationship and had not "assumed obligations of parenthood," and
concluded, in any event, that because of the "animosity" caused
by defendantSee footnote 3 and the fact that "defendant resents the
plaintiff's presence in her life and this attitude is inevitably
passed along to the children," visitation is not in "the best
interest" of the children. We disagree with the trial judge's
conclusion that this "bonded relationship with the children ...
[does not rise] to the level of in loco parentis."See footnote 4
Accordingly, the critical issue to be decided is whether the
granting of joint custody or visitation is in the "best
interests" of the children. In so deciding, we recognize that
here plaintiff seeks neither physical custody nor sole legal
custody and that defendant questions plaintiff's entitlement to
enjoy any parental rights. In determining the issues before us,
we also indicate our view that this is a subject which warrants
legislative review and consideration. However, we must resolve
the dispute at hand in light of the present statutes and existing
case law. We do not write on a clean slate.
N.J.S.A. 9:2-3 provides:
[w]hen the parents of a minor child live separately, or are about to do so, the Superior Court, in an action brought by either parent, shall have the same power to make judgments or orders concerning care, custody, education and maintenance as con cerning a child whose parents are divorced. ... (emphasis added.)
N.J.S.A. 9:2-4 further provides, in part, that:
[t]he Legislature finds and declares that it
is in the public policy of this State to
assure minor children of frequent and
continuing contact with both parents after
the parents have separated or dissolved their
marriage and that it is in the public
interest to encourage parents to share the
rights and responsibilities of child rearing
in order to effect this policy.
In any proceeding involving the custody
of a minor child, the rights of both parents
shall be equal... (emphasis added.)
The statute defines "parent," "when not otherwise described
by the context," to mean a "natural parent or parent by previous
adoption." N.J.S.A. 9:2-13(f). In dealing with similar issues of
custody and visitation of artificially inseminated children
sought by a former lesbian partner of the natural mother, the
California Court of Appeals interpreted its Uniform Parentage Act
by stating:
[E]xpanding the definition of a `parent' in
the manner advocated by the appellant could
expose other natural parents to litigation
brought by child-care providers of long
standing, relatives, successive sets of
stepparents or other close friends of the
family. No matter how narrowly we might
attempt to draft the definition, the fact
remains that the status of individuals
claiming to be parents would have to be
litigated and resolution of these claims
would turn on elusive factual determinations
of the intent of the natural mother, the
perceptions of the children, and the course
of conduct of the party claiming parental
status. By deferring to the Legislature in
matters involving complex social and policy
ramifications far beyond the facts of the
particular case, we are not telling the
parties that the issues they raise are
unworthy of legal recognition. To the
contrary, we intend only to illustrate the
limitations of the courts in fashioning a
comprehensive solution to such a complex and
socially significant issue.
[Nancy S. v. Michele G.,
228 Cal. App.3d 831, 841,
279 Cal. Rptr. 212, 291 (Ct. App.
1991).]
See also West v. Superior Court,
59 Cal. App. 4th 302,
69 Cal.
Rptr.2d 160 (Ct. App. 1997) (denying custody and visitation); In
re Custody of H.S.H.-K.,
533 N.W.2d 419 (Wis.) (denying custody),
cert. denied, Knott v. Holtzman,
516 U.S. 975,
116 S. Ct. 475,
133 L. Ed.2d 404 (1995).
In New Jersey we have nevertheless recognized that
[w]hen social mores change, governing
statutes must be interpreted to allow for
those changes in a manner that does not
frustrate the purposes behind their
enactment. To deny the children of same-sex
partners, as a class, the security of a
legally recognized relationship with their
second parent serves no legitimate state
interest.
[Adoption of Two Children by H.N.R.,
285 N.J.
Super. 1, 10 (App. Div. 1995), quoting
Adoption of B.L.V.B. and E.L.V.B.,
628 A.2d 1271, 1275 (Vt. 1993).]
Generally a third party who is seeking custody of a child
not related to the third party biologically or by adoption must
show that the natural or adoptive parent is unfit in order to be
awarded custody. Zack v. Fiebert,
235 N.J. Super. 424, 432 (App.
Div. 1989); E.T. v. L.P.,
185 N.J. Super. 77, 84 (App. Div.
1982). Requiring that a third party show that the natural or
adoptive parent is unfit protects the natural or adoptive
parent's right to the custody, care and nurturing of their
children. Zack v. Fiebert, supra, 235 N.J. Super. at 432; Matter
of D.T.,
200 N.J. Super. 171, 175-76 (App. Div. 1985). See also
Santosky v. Kramer,
455 U.S. 745, 753,
102 S.Ct. 1388, 1394-95,
71 L.Ed.2d 599 (1982) (recognizing "[t]he fundamental liberty
interest of natural parents"). In Zack Judge Long explained:
[t]here is no single standard applicable in
every third party custody case; the standard
to be applied depends upon the status of the
third party vis a vis the natural parent and
the child.
... Thus, normally, when a third party seeks
custody as against a natural parent, the
standard should be ... unfitness. ...
However, where, as a preliminary
matter, the third party is able to show that
he or she stands in the shoes of a parent to
the child and thus in parity with the natural
parent, he or she should be accorded the
status of a natural parent in determining the
standard to be applied to the quest for
custody. In such circumstances, the best
interests test should apply.
[Zack, supra, 235 N.J. Super. at 432
(citations omitted).]
This two-step approach works well for third party custody and
visitation claims. It permits those individuals who do have a
true parent-type relationship with a child to show that their
continued role in the child's life would be in the best interests
of the child.See footnote 5
As Zack notes, "the standard to be applied depends on the
status of the third party," and New Jersey courts have granted
custody to third parties even when the legal or biological parent
was not unfit.
In Hoy v. Willis,
165 N.J. Super. 265 (App. Div. 1978), the
foster mother had custody and functioned as a psychological
parent to the child for approximately four years after a
voluntary placement, and the expert testified as to the bonded
relationship between the child and the foster mother. We
therefore held that the best interests test should apply, and the
order returning the child to his biological mother was vacated.See footnote 6
In Todd v. Sheridan,
268 N.J. Super. 387 (App. Div. 1993), we
also applied a best interests test because the maternal
grandparents, who sought custody after the mother's death, were
the primary caretakers of the child, were bonded to her and,
according to one expert, functioned as the child's psychological
parents. We, therefore, reversed the Chancery Division's award
of custody to the father. In Palermo v. Palermo,
164 N.J.
Super. 492, 497 (App. Div. 1978), where custody was awarded to
the child's stepmother, the former wife of the natural father, we
noted that New Jersey courts have not "hesitat[ed] to award
custody to someone other than a natural parent when the best
interests of the child so dictate, even in one case where the
natural mother was no longer found to be unfit." See also S. v.
H.M.,
111 N.J. Super. 553 (App. Div. 1970); S.M. v. S.J.,
143 N.J. Super. 379 (Ch. Div. 1976). We similarly conclude that
"unfitness" is not the proper test here. Compare Matter of D.T.,
supra, 200 N.J. Super. at 171, applying an unfitness standard
where the grandparents seeking custody did not allege that they
were the child's psychological parents, the child had lived with
them for less than one year, and the grandparents could not show
why the father should be deprived of custody. See also E.T. v.
L.P., supra, 185 N.J. Super. at 81-84.
N.J.S.A. 9:2-4 provides in pertinent part:
In making an award of custody, the court
shall consider but not be limited to the
following factors: the parents' ability to
agree, communicate and cooperate in matters
relating to the child; the parents'
willingness to accept custody and any history
of unwillingness to allow parenting time not
based on substantiated abuse; the interaction
and relationship of the child with its
parents and siblings; the history of domestic
violence, if any; the safety of the child and
the safety of either parent from physical
abuse by the other parent; the preference of
the child when of sufficient age and capacity
to reason so as to form an intelligent
decision; the needs of the child; the
stability of the home environment offered;
the quality and continuity of the child's
education; the fitness of the parents; the
geographical proximity of the parents' homes;
the extent and quality of time spent with the
child prior to or subsequent to the
separation; the parents' employment
responsibilities; and the age and number of
the children. A parent shall not be deemed
unfit unless the parent['s] conduct has a
substantial adverse effect on the child.
We cannot ignore the statute in applying the Zack test.
Zack recognizes that a "psychological parent" is different than
any other third party seeking custody and does not need to prove
"unfitness" of the natural parent. Zack, supra, 235 N.J. Super.
at 432-33. However, in applying the "best interests" test when a
"psychological parent" seeks custody, deference must still be
given to the statute's definition of parent and to the statutory
policy. The statute refers to "parents," and the "natural bond
of blood [as well as] affection," E.T. v. L.P., supra, 105 N.J.
Super. at 84 (quoting In re Mrs. M.,
74 N.J. Super. 178, 183
(App. Div. 1962)), is a significant factor in deciding custody,
cf. In the Matter of Baby M.
109 N.J. 396 (1988). See also
Matter of D.T., supra, 200 N.J. Super. at 175 (which recognized
"the strong presumption in favor of the natural parent's right of
custody of his or her own child").
Judge Wecker would remand for a new hearing on custody at
which the parties would be guided by the "best interests"
standard. I disagree. The record, including expert testimony,
was fully developed before the trial judge announced the
governing standard as he understood it. Neither party suggests
she has anything further to offer and neither contends that a
guardian ad litem or attorney for the children should have been
appointed. See R. 5:8A, 5:8B.
The parties have been through a great deal as a result of
this emotional litigation. They do not seek any more hearings on
the issue of custody, and (without speculating on what this trial
judge might do in light of his prior opinion)See footnote 7 I believe the
record now warrants the determination that the "best interests"
of the children require denial of the application for joint
custody. Cf. Karins v. City of Atlantic City,
152 N.J. 532, 540-41 (1998); Bressman v. Gash,
131 N.J. 517, 528-29 (1993); R.
2:10-5.See footnote 8
Given the fundamental differences between custody and
visitation, the statutory definition of "parent" and the factors
developed by our statute and case law regarding the issue of
custody, we affirm the trial judge's denial of plaintiff's
petition for joint legal custody.
New Jersey does not limit the privilege of visitation to natural or adoptive parents. The Legislature has, by statute, authorized the granting of visitation to others. See N.J.S.A. 9:2-7.1. Independently, visitation has been granted "under general principles of equity." Klipstein v. Zalewski, 230 N.J. Super. 567, 569 (Ch. Div. 1988). In fact, before us defendant does not assert that visitation (or custody) can only be granted if there is statutory authorization therefor. See, e.g., D.T., supra, (granting visitation to grandparents (before statute authorizing it) even though natural father was given custody).
In Custody of H.S.H-K., 533 N.W.2d 419, 421 (Wis. 1995), a majority of the Wisconsin Supreme Court held that Wisconsin's visitation statute dealing with judgments relating to natural parents was not designed to "be the exclusive means of obtaining court-ordered visitation, or [to] supplant or preempt the court's long recognized equitable power to protect the best interest of a child by ordering visitation under circumstances not included in the statute." The majority concluded that visitation could be awarded "in a child's best interest if the petitioner first proves that he or she has a parent-like relationship with the child and that a significant triggering event justifies state intervention in the child's relationship with a biological or adoptive parent." 533 N.W. 2d at 421. "To establish a significant triggering event justifying state intervention in the child's relationship with a biological or adoptive parent," the petitioner was required to "prove that this parent has interfered substantially with the petitioner's parent-like relationship with the child, and that the petitioner sought court ordered visitation, within a reasonable time after the parent's interference." It is undisputed that defendant has interfered with plaintiff's visitation with the children in this case and that V.C. sought judicial relief expeditiously.
The H.S.H.-K. majority articulated four factors which must be demonstrated to establish a true parent-type relationship, thereby entitling a third party to visitation:
To demonstrate the existence of the petitioner's parent-like relationship with the child, the petitioner must prove four elements: (1) that the biological or adoptive parent consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child's care, education and development, including contributing towards the child's support, without expectation of financial compensation [a petitioner's contribution to a child's support need not be monetary]; and (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.
[533 N.W.
2d at 421 (one footnote omitted and
one footnote placed in body).]
We apply the Wisconsin H.S.H.-K. test to evaluate whether
visitation should be considered in the best interests of a child
when there is no express statutory authorization. That is to say
when a "parent-type relationship" exists and it is in the best
interests of the child, visitation should be awarded. And in
this context the issue of animosity between the parties should be
evaluated as in any case involving visitation. Defendant cannot
deprive plaintiff or the twins of visitation because of
defendant's feelings towards plaintiff. Moreover, supervised
visitation or some court-ordered exchange procedure can be
developed where necessary.
Even under the trial judge's fact-finding and irrespective
of whether defendant planned to have a child before meeting
plaintiff, the record reflects that plaintiff was treated as a
co-parent by defendant, at least for certain purposes; that
plaintiff, defendant and the twins lived together as a family for
about two years; that plaintiff acted as a parent towards the
twins and that they bonded with her as a parent. There is no
dispute that when the children were born defendant sent plaintiff
a card "on the birth of our child" and stating that "[b]eing a
family and being mothers together to our children means more to
me than you may ever know." Thereafter, the parties and children
participated in a "commitment ceremony," and plaintiff was listed
as the "other mother" on the day care registration. Even
defendant's expert thought plaintiff had become a psychological
parent. Under these facts, therefore, plaintiff had a "parent-type relationship" with the children (H.S.H.-K.) and "stood in
the shoes of a parent" (Zack) warranting visitation "in the best
interests" of the children.
In looking at the best interests of the children, both
experts found that they would benefit from continued contact with
plaintiff. Both parties spent extensive time with the children
from the time of their birth until the separation. Plaintiff was
actively involved in caring for the children and formed a bonded
relationship with them. The children also bonded with her.
Contrary to the trial judge's suggestion, even defendant's
expert, Dr. Brodzinsky, testified that plaintiff "has been an
important attachment figure" to the twins and answered
"absolutely" when asked if it "would be fair to say that she is
essentially a psychological parent to them." Subsequent to the
separation, plaintiff continued to spend as much time with the
children as defendant would allow. The parties' decision to
separate and defendant's election to live with another woman
cannot be a basis for depriving the children of continued
visitation with plaintiff.
We affirm the judgment denying the petition for joint custody. We reverse the judgment denying visitation and remand for further proceedings to establish a visitation schedule within thirty days.See footnote 9
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-966-98T3
V.C.,
Plaintiff-Appellant,
v.
M.J.B.,
Defendant-Respondent.
_________________________________________________________________
WECKER, J.A.D., concurring in part; dissenting in part.
I concur in the opinion of Judge Stern with respect to
visitation. I agree completely with Judge Stern that "the
critical issue to be decided is whether the granting of joint
custody or visitation is in the 'best interests' of the
children." However, I dissent from the decision reached by
Judges Stern and Braithwaite, albeit on entirely different
grounds, to affirm the denial of joint legal custody.
My disagreement with Judge Stern in regard to the custody
issue in this case is narrow. He would affirm the denial of
joint custody, apparently applying the best interests standard to
the trial record, and citing only the biological relationship of
M.J.B. with the children as the basis for affirming rejection of
joint custody. I agree that the biological relationship is a
factor to be considered in making a custody determination,
particularly if each party seeks sole custody. However, biology
warrants considerably less weight when joint custody is sought by
one who is, as Judge Stern and I agree, the other psychological
parent to the children. The controlling best interest standard
has never been applied to the facts in this case, because the
trial judge concluded, contrary to the overwhelming weight of the
evidence, that V.C. was not a psychological parent. The judge
therefore obviously did not consider custody or visitation under
a best interests analysis.
Based on the record and the undisputed facts, it is plain to
me, as it is to Judge Stern, that visitation with V.C. is in the
best interests of the children. A remand is required to
determine a specific visitation plan. By contrast, I cannot find
on this record that joint custody is or is not in the best
interests of these children. That is a decision best left to the
Family Part in the first instance. I therefore would remand the
matter for reconsideration of custody under a best interest
analysis. While I recognize the downside of postponing finality,
I am confident that it can be accomplished quickly if given
priority, and that it is a critical step in determining the
future relationship between these children and their "other
mother."
In order to consider whether the trial court erred in
terminating the relationship between V.C. and the children, that
is, whether visitation or joint custody were improperly denied,
we first must decide what standard applies. In reaching the
decision that the best interests of the child must drive both
visitation and custody disputes between a biological parent and
another bonded, psychological parent, I begin, as do my
colleagues, by examining the relevant statutes. N.J.S.A. 9:2-3
provides:
[w]hen the parents of a minor child live
separately, or are about to do so, the
Superior Court, in an action brought by
either parent, shall have the same power to
make judgments or orders concerning care,
custody, education and maintenance as con
cerning a child whose parents are divorced.
... (emphasis added.)
N.J.S.A. 9:2-4 further provides, in part, that:
[t]he Legislature finds and declares that it
is in the public policy of this State to
assure minor children of frequent and
continuing contact with both parents after
the parents have separated or dissolved their
marriage and that it is in the public
interest to encourage parents to share the
rights and responsibilities of child rearing
in order to effect this policy.
In any proceeding involving the custody
of a minor child, the rights of both parents
shall be equal.... (emphasis added.)
I find the statutory definition of "parent" set forth in N.J.S.A.
9:2-13(f) to be significant: "The word parent, when not otherwise
described by the context, means a natural parent or parent by
previous adoption." N.J.S.A. 9:2-13(f) (emphasis added). The
Legislature did not foreclose the possibility that a person other
than a "natural parent or parent by previous adoption" might come
within the class of persons referred to as "parents" in N.J.S.A.
9:2-3 and 9:2-4, depending upon "the context." That definition
evidences flexibility, not rigidity, consistent with the various
family relationships existing in our society today. More
significantly, it is consistent with the family established by
these parties, who entered into what each described as a
committed relationship, unquestionably intending to raise these
children together. I can imagine few circumstances in which a
person other than a "natural parent or parent by previous
adoption" is better "described by the context" than V.C.
The facts here plainly evidence defendant's recognition of
plaintiff as the children's "other mother," at least during the
first two-and-one-half years of the children's lives. The
parties' commitment ceremony was as close to a marriage ceremony
as it could be under law. It was sanctioned by a priest who was
recognized by both parties. M.J.B. chose V.C. to be the
children's "other mother," and expressed her feelings about
V.C.'s role as a co-parent on numerous occasions. The parties
and the children attended numerous family and social events
together as a family, including functions at Lambda Families, an
organization for gay and lesbian families. In addition, the
children had a close relationship with V.C.'s extended family.
V.C's brother is J.M.B.'s godfather; the children called V.C.'s
mother "grandma," and they are also close to V.C.'s grandmother
and siblings.
The trial judge erred, in my view, by posing the wrong
question with respect to M.J.B.'s intent in conceiving these
children. He cited M.J.B.'s medical consultation and preparation
for artificial insemination before entering a relationship with
V.C., and her discussions with others about the choice of a sperm
donor, in support of his conclusion that "[t]he decision to have
the children was clearly the defendant's rather than a joint
decision by both parties." The relevant question, it seems to
me, is not whether M.J.B. would have gone forward with
insemination without V.C., but whether she in fact did so fully
intending that they would jointly parent the child[ren] of this
conception. The record unambiguously establishes that the answer
to that question is "yes."
From the point of view of the children and the parties, V.C.
is no third party interloper. Even measured by the trial judge's
recitation of the facts, plaintiff's relationship with the
children was functionally and psychologically that of a parent.
Moreover, the evidence was undisputed that V.C. undertook
the financial responsibilities of a parent to these children.
While the parties maintained their relationship, each executed a
will naming the other as beneficiary, and each named the children
as contingent beneficiaries. V.C. originally named the children
as contingent beneficiaries on her pension and life insurance,
with M.J.B. as primary beneficiary. After the parties separated,
V.C. made the children her primary beneficiaries. The parties
contributed to savings accounts for each child, and each of the
parties served as a custodian. In addition, V.C. voluntarily
paid child support to M.J.B. after the separation, which M.J.B.
accepted for a time, apparently until she decided to cut off
V.C.'s relationship with the children. By denying the non-biological mother any legal recognition, the court has also
denied the children the financial support of a second parent, as
well as the security of having another parent who could maintain
stability and continuity in their lives in the event of M.J.B.'s
premature death or incapacity.
I disagree with Judge Braithwaite's reliance upon what he
describes as a literal interpretation of the statute defining
"parent," and his view that allowing either visitation or custody
as sought here by V.C. would constitute a radical departure from
current law. Without disavowing Zack, Judge Braithwaite
justifies the denial of both custody and visitation on a finding
that "the trial court properly concluded that plaintiff was not a
psychological parent." He reaches that conclusion by defining
"psychological parent" as one whose removal from the child's life
"will cause that child severe psychological harm," citing Hoy v.
Willis,
165 N.J. 265, 272 (App. Div. 1978), without addressing
the evidence that Judge Stern and I each have cited to conclude
that V.C. is a psychological parent. Psychological parenthood is
a finding based upon the role the person historically has played
in the child's life. Neither optimistic nor pessimistic
predictions of future harm that would result from ending that
role can logically define the role itself.
Judge Braithwaite would recognize no legal status whatsoever
in V.C.'s relationship to the children absent express
legislation. In my view, granting V.C. visitation and remanding
for reconsideration of custody would effect a reasonable
application of existing statutes and common law to reality;
families today take many forms, and we must protect all
relationships between parents and children.
While it would be appropriate for the Legislature to address
the issues raised by this case, these children cannot wait. It
is the function of the courts to address those interstitial areas
where no statute literally controls. See, e.g., In re Adoption
of B. by E. and R.,
152 N.J. Super. 546, 555 (Co. Ct. 1977) (in
light of the birth father's objection, Judge (now Justice)
Coleman denied adoption but awarded custody to grandparents who
"[stood] as psychological parents to B. in every sense of the
term." My opinion is informed, as is Judge Stern's, by the
decision and reasoning of the majority in Adoption of Two
Children by H.N.R.,
285 N.J. Super. 1, 10 (App. Div. 1995),
quoting Adoption of B.L.V.B. and E.L.V.B.,
628 A.2d 1271, 1275
(Vt. 1993),See footnote 10 and construing the adoption statute to permit a
biological mother's same sex partner to adopt.
When social mores change, governing statutes
must be interpreted to allow for those
changes in a manner that does not frustrate
the purposes behind their enactment. To deny
the children of same-sex partners, as a
class, the security of a legally recognized
relationship with their second parent serves
no legitimate state interest.
My view is consistent, as is Judge Stern's, with Zack v.
Fiebert,
235 N.J. Super. 424, 432 (App. Div. 1989), where Judge
Long wrote for this court:
[T]here is no single standard applicable in
every third party custody case; the standard
to be applied depends upon the status of the
third party vis a vis the natural parent and
the child.
[W]here, as a preliminary matter, the
third party is able to show that he or she
stands in the shoes of a parent to the child
and thus in parity with the natural parent,
he or she should be accorded the status of a
natural parent in determining the standard to
be applied to the quest for custody. In such
circumstances, the best interests test should
apply.
[(emphasis added) (citations omitted).]
See also J.A.L. v. E.P.H.,
682 A.2d 1314, 1319 (Pa. Super. Ct.
1996):
Biological parents have a prima facie right
to custody, but biological parenthood is not
the only source of such a right. Cognizable
rights to seek full or partial custody may
also arise under statutes . . . permitting
grandparents and great-grandparents to seek
visitation or partial custody of their
grandchildren or great grandchildren) or by
virtue of the parties' conduct, as in cases
where a third party who has stood in loco
parentis has been recognized as possessing a
prima facie right sufficient to grant
standing to litigate questions of custody of
the child for whom he or she has cared. See,
e.g., Rosado v. Diaz,
425 Pa.Super. 155,
624 A.2d 193 (1993); Karner v. McMahon,
433 Pa.Super. 290,
640 A.2d 926 (1994).
In Zack we recognized that someone who stands in the shoes
of a parent, that is, one who has effectively become a
psychological parent, is different than any other third party
seeking custody, and that such a parent therefore need not prove
that the so-called natural parent is unfit. Zack, supra, 235
N.J. Super. at 432-33. However, the record contained
insufficient proof that the grandparents who sought custody had
become psychological parents to the child, and "the standard to
be applied depends on the status of the third party . . . ." The
best interest test was therefore inappropriate.
One commentator has recommended "expanding the definition of
parent to include those persons who have established a parental
relationship with the child," while preserving "the natural
parent preference, but only to the extent that it is consistent
with the child's best interest." Janet Leach Richards, The
Natural Parent Preference Versus Third Parties: Expanding the
Definition of Parent,
16 Nova L. Rev. 733, 735 (1992). Richards
would extend the natural parent preference to a third party who
had acted as a parent, such as V.C., and in a custody dispute
between such a person and a natural parent, as here, the standard
simply "would be the best interest of the child." Id.
As Judge Stern notes, there is ample precedent for granting
custody to a psychological parent where that is in the best
interest of the child. See Hoy v. Willis,
165 N.J. Super. 265
(App. Div. 1978) (foster mother functioned as a psychological
parent and had a bonded relationship with the child). In Hoy we
recognized more than twenty years ago,
Courts have traditionally been reluctant
to deny a parent custody of his or her child.
However, when the best interests of the child
will clearly be served by a custody award to
a third party, a finding of either parental
unfitness or abandonment is not a
prerequisite to the entry of an order doing
so.
That there can be a psychological
parent-child relationship between a child and
someone other than the child's biological
parent is well recognized in the literature
on the subject. Biological relationships are
not an exclusive determinate of the existence
of a family.
[Id. 165 N.J. at 272. (citations omitted).]
See also Todd v. Sheridan,
268 N.J. Super. 387 (App. Div.
1993) (reversing custody award to father, and ordering a best
interests test to consider maternal grandparents' custody claim
as the child's psychological parents and primary caretakers).
Palermo v. Palermo,
164 N.J. Super. 492, 497 (App. Div. 1978)
(custody awarded to child's stepmother over the natural father);
S.M. v. S.J.,
143 N.J. Super. 379 (Ch. Div. 1976). I agree
entirely with Judge Stern that "unfitness" is not the proper test
here. In applying the best interest test to a psychological
parent's application for custody, I would follow the guidance of
N.J.S.A. 9:2-4, considering the non-exclusive factors set forth
in that statute, and recognizing the "status as biological
[parent] as one weight in the best interests balance." Todd v.
Sheridan, supra, 268 N.J. Super. at 399.
Judge Braithwaite relies in part upon a decision of one
intermediate appellate court in California. Nancy S. v. Michele
G.,
228 Cal. App.3d 831,
279 Cal. Rptr. 212 (Ct. App. 1991)
(denying custody and visitation on similar facts). After
describing the parties' joint decision to parent two children,
and the post-separation shared custody arrangements, that court
"agree[d] with appellant that the absence of any legal
formalization of her relationship to the children [i.e.,
adoption] has resulted in a tragic situation." Id., 228 Cal.
App.
3d at 841, 279 Cal. Rptr. at 219 (emphasis added). However,
the California court felt bound to a narrow statutory definition
of parent "as one who is the natural or adoptive parent of a
child." Id., 228 Cal. App.
3d at 835, 279 Cal. Rptr. at 215.See footnote 11
[E]xpanding the definition of a 'parent' in
the manner advocated by the appellant could
expose other natural parents to litigation
brought by child-care providers of long
standing, relatives, successive sets of
stepparents or other close friends of the
family. No matter how narrowly we might
attempt to draft the definition, the fact
remains that the status of individuals
claiming to be parents would have to be
litigated and resolution of these claims
would turn on elusive factual determinations
of the intent of the natural mother, the
perceptions of the children, and the course
of conduct of the party claiming parental
status. By deferring to the Legislature in
matters involving complex social and policy
ramifications far beyond the facts of the
particular case, we are not telling the
parties that the issues they raise are
unworthy of legal recognition. To the
contrary, we intend only to illustrate the
limitations of the courts in fashioning a
comprehensive solution to such a complex and
socially significant issue.
[Id. 228 Cal. App.
3d at 841, 279 Cal. Rptr.
at 291.]
Our own statute is broader, as noted above, and in any event
does not require judicial inaction in the face of a perceived
"tragic situation." I do not share the fear of a "slippery
slope" as expressed by the California court and Judge
Braithwaite. Family courts make decisions that "turn on elusive
factual determinations" of intent and perceptions every day.
Moreover, concern that to allow V.C. visitation will subject
other parents to intrusive applications for visitation by "former
live-in grandparents, babysitters, nannies and others" represents
an understandable but unwarranted fear. Writing for a
Pennsylvania appellate court, Judge Beck has said it well:
The in loco parentis basis for standing
recognizes that the need to guard the family
from intrusions by third parties and to
protect the rights of the natural parent must
be tempered by the paramount need to protect
the child's best interest. Thus, while it is
presumed that a child's best interest is
served by maintaining the family's privacy
and autonomy, that presumption must give way
where the child has established strong
psychological bonds with a person who,
although not a biological parent, has lived
with the child and provided care, nurture,
and affection, assuming in the child's eye a
stature like that of a parent. Where such a
relationship is shown, our courts recognize
that the child's best interest requires that
the third party be granted standing so as to
have the opportunity to litigate fully the
issue of whether that relationship should be
maintained even over a natural parent's
objections.
[J.A.L. v. E.P.H., supra, 682 A.2d at 1319-20.]
Parental autonomy o