RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0878-12T2
K.A.F.,1 APPROVED FOR PUBLICATION Plaintiff-Respondent, August 6, 2014 v. APPELLATE DIVISION D.L.M.,
Defendant-Appellant. _________________________________
D.L.M.,
Plaintiff-Appellant,
v.
K.A.F. and F.D.,
Defendants-Respondents. _________________________________
Argued January 6, 2014 – Decided August 6, 2014
Before Judges Parrillo, Harris and Kennedy.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket Nos. FM-11-830-11 and FD-11- 996-12.
1 We refer to the parties by their initials to preserve their privacy. We refer to the child by a pseudonym for the same reason. Abbey True Harris argued the cause for appellant (Fox Rothschild LLP and Jerner & Palmer, P.C., attorneys; Jennifer Weisberg Millner, Ms. Harris, Tiffany Palmer and Rebecca G. Levin, of counsel and on the brief; Lauren Koster Beaver and Michael Coco, on the brief).
Robin T. Wernik argued the cause for respondents (Wernik & Salvatore, attorneys; Ms. Wernik and David Salvatore, of counsel and on the brief).
Gibbons P.C., attorneys for amicus curiae National Center for Lesbian Rights (Lawrence S. Lustberg, on the brief).
The opinion of the court was delivered by
KENNEDY, J.A.D.
This appeal arises from a custody and visitation dispute
between D.L.M. (D.M.), a step-parent of now twelve-year old
Arthur, on the one hand, and K.A.F., the biological mother of
Arthur, and F.D., the adoptive parent of Arthur and former
domestic partner of K.A.F., on the other. D.M., a subsequent
and now former domestic partner of K.A.F., filed a complaint in
the Family Part seeking custodial and visitation rights as a
"psychological parent" of Arthur pursuant to V.C. v. M.J.B., 163
N.J. 200, cert. denied, 531 U.S 926, 121 S. Ct. 302, 148 L. Ed.
2d 243 (2000). K.A.F. and F.D. filed an answer and opposed
D.M.'s complaint.
Although the parties submitted highly detailed
certifications and other documents in support of their
2 A-0878-12T2 respective positions, which clearly raised many material factual
issues that would have warranted a plenary hearing, the Family
Part judge dismissed D.M.'s complaint on a motion for summary
judgment, having determined that "there's no genuine issue of
material fact" suggesting that F.D. had ever consented to a
psychological parent relationship between D.M. and Arthur, and
that "[w]hen two involved parents and fit parents are involved
in [the child's] life an application under V.C. . . . require[s]
both to consent" to the creation of the claimed relationship
before a court may even address the issue. We disagree with
both conclusions, and therefore we reverse the order of
dismissal and remand this matter for a plenary hearing.
Because of the clearly contested facts, which the judge and
the parties acknowledge, we recite only a brief history of the
relationships of the parties as gleaned from the materials
presented. Many additional factual averments material to the
question before us are contained in the parties' opposing
certifications. We shall thereafter review the principles of
law which guide the Family Part's determinations in such cases.
I.
K.A.F. and F.D. had been romantically involved since 1998,
and in 1999 began living together. In 2000, the two women
bought a house and thereafter decided to have a child. They
3 A-0878-12T2 made arrangements with an entity to obtain a sperm donor, and
they agreed that K.A.F. would carry the child. All went as
planned, and Arthur was born in December 2002.
Although their relationship became strained thereafter,
causing them to begin living separately in June 2004, K.A.F. and
F.D. apparently harbored hope for a reconciliation at some time
and agreed to share equal time with Arthur and make joint
decisions as to his care and welfare. On March 3, 2005, F.D.
formally adopted Arthur with the consent of K.A.F., and in
November of that year Arthur's birth certificate was issued
listing both K.A.F. and F.D. as his parents.2
In the meantime, D.M., a friend of both F.D. and K.A.F.,
became romantically involved with K.A.F. and they moved in
together in the Fall of 2004. They subsequently bought a home
and formalized their domestic partnership in May 2006.
According to D.M., she and K.A.F. "equally shared parental
responsibility" for Arthur when he resided in their home.
K.A.F. concedes that D.M. "participated in aspects of [Arthur's]
care," but disputes the extent of the role D.M. actually
undertook. F.D. also concedes that she has no direct knowledge
2 F.D., as an adoptive parent, is entitled to the same "relationships, rights and responsibilities" with respect to Arthur as if he were born to her. N.J.S.A. 9:3-50(b); Zack v. Fiebert, 235 N.J. Super. 424, 429 n.1 (App. Div. 1989); In re Adoption of G., 89 N.J. Super. 276, 281 (Cty. Ct. 1965).
4 A-0878-12T2 about the extent of D.M.'s role with Arthur when he lived with
K.A.F. and D.M., but claims "[a]t all times I have adamantly and
wholeheartedly opposed [D.M.'s] attempts to parent" Arthur.3
In any event, strains developed over time in the
relationship between K.A.F. and D.M., resulting in D.M. leaving
their home in March 2010. From that date through May 2011, D.M.
had more or less regular visitation with Arthur, including
weekly overnight stays. However, this arrangement began to end
in June 2011, and ceased altogether in November 2011, amidst an
angry confrontation between D.M. and K.A.F. In January 2012,
K.A.F. advised D.M. in writing that she would no longer allow
her to have any contact with Arthur.
On October 12, 2011, the court entered judgment dissolving
the domestic relationship between K.A.F. and D.M.4 In February
2012, D.M. filed a complaint in the Family Part seeking "joint
custody" of Arthur and a "reasonable visitation schedule," as
well as other relief. K.A.F. and F.D. opposed the complaint,
3 Within the materials provided on appeal are documents which can be read to dispute the extent of F.D.'s opposition to D.M.'s role with Arthur. D.M. concedes only that F.D. was generally "resistant" to her involvement as a parent to Arthur. We simply note these documents and averments and, of course, come to no conclusion about this issue, which would have to be resolved following a plenary hearing. 4 That judgment was entered following a complaint filed by K.A.F. D.M. did not seek any relief respecting Arthur at that time.
5 A-0878-12T2 and, as we have explained, the Family Part judge dismissed the
complaint on a motion for summary judgment. This appeal
followed.
II.
As noted earlier, the judge made two rulings which we are
asked to review: the first ruling is that there is no genuine
issue of material fact suggesting that F.D. ever consented to
the creation of a psychological parent relationship between D.M.
and Arthur; and the second is that where there are two fit and
involved parents, both must have consented to the creation of a
psychological parent relationship before a third party can
maintain an action for visitation and custody based on the
existence of that relationship. Although these two issues are
intertwined, we shall examine them separately for purposes of
clarity. Because the question of consent is a matter of first
impression, we shall begin there.
A.
Plainly stated, the issue is whether F.D.'s alleged lack of
consent to D.M.'s performance of parental duties as to Arthur,
if true, necessarily deprives D.M. of standing to bring this
action. We hold it does not.
K.A.F. and F.D. argue that D.M. cannot attain the legal
status of a psychological parent because F.D. did not consent to
6 A-0878-12T2 D.M. forming a parent-child relationship with Arthur. Their
argument, which was adopted by the Family Part judge, is that
where there are two fit and active parents, both legal parents
must have consented to the development of a psychological parent
relationship between a third party and their child in order for
the third party to have standing to advance that claim in the
first instance. They argue that the consent of only one
custodial parent is not enough. We fail to perceive any basis
for this argument either in the law or the policies underlying
the concept of a psychological parent.
The theory of psychological parentage was first enunciated
in Sorentino v. Family & Children's Soc. of Elizabeth, 72 N.J.
127 (1977), where our Supreme Court recognized that there is a
"serious potential for psychological harm to young children if
they are removed from a foster home where they had lived and
been nurtured during their early years." Zack, supra, 235 N.J.
Super. at 430, n.3.
In Sorentino, the sixteen year-old mother of a newborn
child surrendered the child for temporary foster care to the
defendant agency after the child's natural father, then eighteen
years of age, refused to marry her. 72 N.J. at 129. She
thereafter surrendered the child for adoption under
circumstances the trial court later found to be coercive. Ibid.
7 A-0878-12T2 The natural father learned of the surrender of the child for
adoption within two months of the child's birth, went to the
agency to lodge his protest, and was rebuffed. Ibid.
Fourteen months later, the natural parents, having married,
filed a complaint to regain custody of their child. Id. at 130.
The trial judge found both natural parents fit to take custody,
and determined that the mother had surrendered the child as a
consequence of undue pressure by the defendant agency and that
the father, being known and acknowledging parenthood, had been
denied his "constitutional rights." Ibid.
Although no formal adoption proceedings had been instituted
by the time the case reached the Supreme Court over two years
after the child's birth, the child had remained in the custody
of the prospective adoptive parents. The Supreme Court held
that the trial judge had a sufficient evidential basis for his
findings of fact and that ordinarily such a determination would
warrant "an immediate vesting of custody of the child in the
natural parents." Id. at 131. The Court then explained,
We are given pause, however, in adjudicating such a summary and drastic change in the life circumstances of this child, now 31 months old. We are confronted with the potentiality of serious psychological injury to the child, in the evaluation of which substantial significance should attach to the length of time the child has been with the prospective adopting parents and to the quality of the developing relationship. See
8 A-0878-12T2 Commonwealth ex rel. Bankert v. Children's Services, 224 Pa. Super. 556 (Super. Ct. 1973); Note, "Increasing the Rights of Foster Parents," 36 U. Pitt. L. Rev. 715, 723 (1975). Cf. In re Adoption of a Child by R.D., supra, 127 N.J. Super. at 316; In re P., and wife, 114 N.J. Super. 584, 593 et seq. (App. Div. 1971); Note, "Alternatives to 'Parental Right' in Child Custody Disputes Involving Third Parties," 73 Yale L.J. 151, 158 et seq. (1963). We are not suggesting that such a potentiality suffices as a matter of law to justify a reversal in this case. However, the potentiality does require a hearing and determination on the issue.
[Id. at 131-32.]
The Court went on to hold that the "possibility of serious
psychological harm to the child in this case transcends all
other considerations." Id. at 132.
While a natural parent's right to the care, custody, and
control of his or her child is a "fundamental right to parental
autonomy," N.J. Div. of Youth & Family Servs. v. P.W.R., 205
N.J. 17, 38 (2011), and is recognized as "a fundamental liberty
interest protected by the Due Process Clause of the Fourteenth
Amendment to the United States Constitution[,]" Moriarty v.
Bradt, 177 N.J. 84, 101 (2003), cert. denied, 540 U.S. 1177, 124
S. Ct. 1408, 158 L. Ed. 2d 78 (2004); see also Prince v.
Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 442, 88 L. Ed.
645, 652 (1944); Watkins v. Nelson, 163 N.J. 235, 245 (2000);
V.C., supra, 163 N.J. at 218, that right, as noted in Sorentino,
9 A-0878-12T2 is not absolute. The presumption in favor of the parent will be
overcome by "a showing of gross misconduct, unfitness, neglect,
or 'exceptional circumstances' affecting the welfare of the
child[.]" Watkins, supra, 163 N.J. at 246.
In V.C., our Supreme Court explained that "[s]ubsumed
within" the category of "exceptional circumstances" is the
"subset known as the psychological parent cases in which a third
party has stepped in to assume the role of the legal parent
. . . ." V.C., supra, 163 N.J. at 219. The "exceptional
circumstances" exception does not require proof that a parent is
unfit. The Court has explicitly stated that "exceptional
circumstances" may rebut the presumption in favor of a parent
seeking custody even if there is not a basis for terminating
parental rights on statutory grounds and, indeed, even if the
parent is "deemed to be a fit parent." Watkins, supra, 163 N.J.
at 246-48; see also V.C., supra, 163 N.J. at 219; Sorentino,
supra, 72 N.J. at 131-32. "'[E]xceptional circumstances' based
on the probability of serious psychological harm to the child
may deprive a parent of custody." Watkins, supra, at 246-47
(citing Sorentino, supra, 72 N.J. at 131-32).
Although observing that the full scope of the "exceptional
circumstances" exception remained undefined and would evolve
through a case-by-case development, the Court also clarified its
10 A-0878-12T2 intent that the scope of the exception was not so narrow as to
be limited to cases such as Sorentino, in which the parents were
"complete strangers" to the child or unfit. Id. at 247.
Specifically, "exceptional circumstances" may exist "if a change
in custody will cause serious psychological harm to a child."
Ibid.
Psychological parent cases, as noted, constitute a subset
of "exceptional circumstances" cases, in recognition of
children's "strong interest in maintaining the ties that connect
them to adults who love and provide for them." V.C., supra, 163
N.J. at 219, 221. A third party may become a psychological
parent as a result of "the volitional choice of a legal parent
to cede a measure of parental authority to a third party[.]"
Id. at 227. Once a third party becomes a psychological parent,
he or she "steps into [the] shoes" of a natural parent, id. at
223-24 n.6, and determinations between the natural and
psychological parent are made pursuant to a best interests
analysis. Id. at 227-28.
Four essential requirements must be satisfied for one to
become a psychological parent:
[T]he legal parent must consent to and foster the relationship between the third party and the child; the third party must have lived with the child; the third party must perform parental functions for the child to a significant degree; and most
11 A-0878-12T2 important, a parent-child bond must be forged.
[Id. at 223.]
These criteria are designed "to evaluate whether a third party
has become a 'psychological parent' to a child of a fit and
involved legal parent, and thus has standing to bring a custody
suit." P.B. v. T.H., 370 N.J. Super. 586, 595 (App. Div. 2004).
As the Supreme Court explained in V.C.,
[a]t the heart of the psychological parent cases is a recognition that children have a strong interest in maintaining the ties that connect them to adults who love and provide for them. That interest, for constitutional as well as social purposes, lies in the emotional bonds that develop between family members as a result of shared daily life. Smith v. Org. of Foster Families for Equal. and Reform, 431 U.S. 816, 844, 97 S. Ct. 2094, 2109, 53 L. Ed. 2d 14, 35 (1977). That point was emphasized in Lehr v. Robertson, 463 U.S. 248, 261, 103 S. Ct. 2985, 2993, 77 L. Ed. 2 d 614, 626 (1983), where the Supreme Court held that a stepfather'[s] actual relationship with a child was the determining factor when considering the degree of protection that the parent-child link must be afforded.
[V.C., supra, 163 N.J. at 221.]
Where custody is sought by a third party, the court must
conduct a two-step analysis. The first step requires the court
to determine whether the presumption in favor of the legal
parent is overcome by either a showing of "unfitness" or
"exceptional circumstances." Watkins, supra, 163 N.J. at 247,
12 A-0878-12T2 254. In Watkins, the Court emphasized that one of those grounds
must be proven before the trial court proceeds to the second
step of the analysis. Id. at 237 ("That presumption can be
rebutted by proof of gross misconduct, abandonment, unfitness,
or the existence of 'exceptional circumstances,' but never by a
simple application of the best interests test."). It is only
after that presumption has been rebutted that the court proceeds
to the determination whether awarding custody or other relief to
the third party would promote the best interests of the child.
Id. at 254; P.B., supra, 370 N.J. Super. at 594; see also
Moriarty, supra, 177 N.J. at 117 (noting that when the
presumption in favor of parental decision-making is overcome,
court should determine a visitation schedule based upon the
child's best interests).
With this background, we turn to the question of whether
both legal parents must consent, or whether the consent of only
one "fit and involved" legal parent is sufficient to support a
claim by a third party of psychological parenthood. From the
perspective of simple logic, it would be difficult to ignore the
"psychological harm" a child might suffer because he is deprived
of the care of a psychological parent simply because only one of
his "legal parents" consented to the relationship.
13 A-0878-12T2 The clear policy underlying the Court's rulings in
Sorentino, Watkins, and V.C. is that "exceptional circumstances"
may require recognition of custodial or visitation rights of a
third party with respect to a child where the third party has
performed parental duties at home for the child, with the
consent of a legal parent, however expressed, for such a length
of time that a parent-child bond has developed, and terminating
that bond may cause serious psychological harm to the child.
Sorentino, supra, 72 N.J. at 131-32; Watkins, supra, 163 N.J. at
246-47; V.C., supra, 163 N.J. at 219, 223-28. It is fatuous to
suggest that this fundamental policy may be subverted, and that
a court may not even examine the issue at a plenary hearing,
where one of the child's legal parents colorably claims lack of
consent, in circumstances where the other legal parent has
consented. If we were to accept the arguments of K.A.F. and
F.D., a court would be powerless to avert harm to a child
through the severance of the child's parental bond with a third
party. That result is not supported by the Court's carefully
crafted policy governing such cases.
The Family Part judge suggested in his ruling that if both
fit and involved parents do not consent, a child might then in
the future have "three legal parents, four legal parents[,]"
depending on the romantic vagaries of the original legal
14 A-0878-12T2 parents. To this argument, we observe that the Court in V.C.
stated that establishing psychological parenthood is "not an
easy task[.]" V.C., supra, 163 N.J. at 230. Moreover, we have
confidence that our Family Part judges have the expertise and
discretion to appropriately address such issues as they arise.
Of some significance to the case before us, the Court in
Sorentino also expressly clarified that its prior holdings did
not establish that "the right of custody over a child by a
nonforsaking parent was necessarily inviolable as against a
showing of the probability of serious harm to the child if such
custody was awarded." Sorentino, supra, 72 N.J. at 132.
Plainly understood, this statement by the Court emphasizes that
the transcendent importance of preventing harm to a child weighs
more heavily in the balance then the fundamental custody rights
of a non-forsaking parent. It also supports the proposition
that where at least one "legal parent" of a child has, by his or
her actions, effectively consented to the creation of a
psychological parent relationship between that child and a
third-party, the third party has standing to pursue the claim.
Further, the Court in V.C. declared that it was explicitly
addressing
a specific set of circumstances involving the volitional choice of a legal parent to cede a measure of parental authority to a third party; to allow that party to function
15 A-0878-12T2 as a parent in the day-to-day life of the child; and to foster the forging of a parental bond between the third party and the child. In such circumstances, the legal parent has created a family with the third party and the child, and has invited the third party into the otherwise inviolable realm of family privacy. By virtue of her own actions, the legal parent's expectation of autonomous privacy in her relationship with her child is necessarily reduced from that which would have been the case had she never invited the third party into their lives. Most important, where that invitation and its consequences have altered her child's life by essentially giving him or her another parent, the legal parent's options are constrained. It is the child's best interest that is preeminent as it would be if two legal parents were in a conflict over custody and visitation.
[V.C., supra, 163 N.J. at 227.]
The Court's continual reference to "a" legal parent or "the"
legal parent in the singular strengthens our conclusion that the
consent of both legal parents is not required to create a
psychological parent relationship between their child and a
third party.
Nothing in the historical development of the psychological
parent policy, in the policy itself, or in the language of the
Court, therefore, suggests that both legal parents must consent
before a court may consider a claim of psychological parenthood
by a third party. Rather, it is sufficient if only one of the
legal custodial parents has consented to the parental role of
16 A-0878-12T2 the third party. In that circumstance, a legal custodial parent
has voluntarily created the relationship and thus has permitted
the third party to enter the zone of privacy between her and her
child.
By so holding, we do not discount the importance of F.D.'s
"consent", or lack thereof, in the case before us.
The requirement of cooperation by the legal parent is critical because it places control within his or her hands. That parent has the absolute ability to maintain a zone of autonomous privacy for herself and her child. However, if she wishes to maintain that zone of privacy she cannot invite a third party to function as a parent to her child and cannot cede over to that third party parental authority the exercise of which may create a profound bond with the child.
[V.C., supra, 163 N.J. at 224.]
It may be used by a trial court, in an appropriate context, as
one factor among many in determining whether a third party has
established that he or she is a psychological parent of a child,
and, if so, whether the "best interests" of the child warrant
some form of custody or visitation. See Id. at 228 (enumerating
the factors under N.J.S.A. 9:2-4) and Todd v. Sheridan, 268 N.J.
Super. 387, 399 (App. Div. 1993) (a natural parent's status is
"one weight in the best interests balance"). We would expect,
however, that in most cases, the longer and more established the
17 A-0878-12T2 parental role of a third party has become, the lack of consent
by one legal parent would diminish in analytical significance.
Once the court has determined that the role of
psychological parent exists, the question of what relief is
warranted entails consideration of the best interests of the
child. In V.C. the Supreme Court held:
Visitation, however, will be the presumptive rule, subject to the considerations set forth in N.J.S.A. 9:2-4 as would be the case if two natural parents were in conflict. As we said in Beck v. Beck, 86 N.J. 480, 495 (1981), visitation rights are almost "invariably" granted to the non-custodial parent. Indeed, "[t]he denial of visitation rights is such an extraordinary proscription that it should be invoked only in those exceptional cases where it clearly and convincingly appears that the granting of visitation will cause physical or emotional harm to the children or where it is demonstrated that the parent is unfit." Barron v. Barron, 184 N.J. Super. 297, 303 (Ch. Div. 1982); see also, Wilke v. Culp, 196 N.J. Super. 487, 503 (App. Div. 1984) (requiring convincing evidence of exceptional circumstance to warrent denial of visitation). Once the parent-child bond is forged, the rights and duties of the parties should be crafted to reflect that reality.
[V.C., supra, 163 N.J. at 228-29.]
B.
We next turn to the question of whether the court should
have granted a plenary hearing. A court, when presented with
conflicting factual averments material to the issues before it,
18 A-0878-12T2 ordinarily may not resolve those issues without a plenary
hearing. While we respect the family court's special expertise,
a court may not make credibility determinations or resolve
genuine factual issues based on conflicting affidavits.
Conforti v. Guliadis, 245 N.J. Super. 561, 565-66 (App. Div.
1991), aff'd in part and modified in part on other grounds, 128
N.J. 318 (1992). When the evidence discloses genuine
material issues of fact, the failure to conduct a plenary
hearing to resolve those issues requires us to reverse and
remand for such a hearing. See, e.g., Fusco v. Fusco, 186 N.J.
Super. 321, 329 (App. Div. 1982); Tancredi v. Tancredi, 101 N.J.
Super. 259, 262 (App. Div. 1968), superseded by statute on other
grounds, N.J.S.A. 2A:17-56.23a, as recognized in Mallamo v.
Mallamo, 280 N.J. Super. 8, 13 (App. Div. 1995).
Moreover, a plenary hearing is particularly important when
the submissions show there is a genuine and substantial factual
dispute regarding the welfare of children. See Hand v. Hand,
391 N.J. Super. at 102, 105 (App. Div. 2007); and R. 5:8-6
(requiring the court to "set a hearing date" if it "finds that
the custody of children is a genuine and substantial issue").
Even where a party waives a plenary hearing, "the matter of
visitation is so important, especially during the formative
years of a child, that if a plenary hearing will better enable a
19 A-0878-12T2 court to fashion a plan of visitation more commensurate with a
child's welfare, nonetheless it should require it." Wagner v.
Wagner, 165 N.J. Super. 553, 555 (App. Div. 1979).
When an issue of child custody or parenting time is
presented and "[t]he trial court's order was based on its
evaluation of conflicting affidavits and adopt[ed] the
assertions of one party over the other without the benefit of a
plenary hearing," Mackowski v. Mackowski, 317 N.J. Super. 8, 11,
(App. Div. 1998), we have reversed and remanded for a hearing.
Id. at 14; see also Wilke v. Culp, 196 N.J. Super. 487, 501,
(App. Div. 1984) (finding that "[i]t is basic that a case should
not be decided merely on the basis of conflicting affidavits"),
certif. denied, 99 N.J. 243 (1985).
In the matter before us, the Family Part judge found that
the detailed certifications before him did not give rise to a
genuine issue of fact showing that F.D. had consented to D.M.'s
assumption of ongoing parental duties with respect to Arthur.
While the cause of action brought by D.M. is not "immune to the
summary judgment procedure," A.F. v. D.L.P., 339 N.J. Super.
312, 320 (App. Div. 2001), it is nonetheless clear that D.M.
averred sufficient facts that, if credited at a plenary hearing,
would establish her standing to pursue her complaint.
20 A-0878-12T2 By way of example, D.M. has asserted that she and K.A.F.
lived in a familial setting with Arthur for over six years, from
the time he was eighteen months old, and that she performed many
normal parental duties during that time with the full consent
and encouragement of K.A.F. She further asserted that "[F.D.]
assented to" her assumption of parental duties for Arthur, and
"knew that [she] was parenting [Arthur]" and participating in
all "major decisions" pertaining to his welfare.
F.D. and K.A.F. dispute these averments of fact, thereby
giving rise to the necessity of a plenary hearing. In addition,
F.D.'s argument that she never explicitly consented to D.M.'s
parental role, and expressly objected to D.M.'s assumption of
any parental function, does not obviate the necessity for a
plenary hearing. As we held above, F.D.'s explicit consent is
unnecessary, and a court may find her assertion that she had
always expressly objected to D.M.'s participation in the
parenting of Arthur to be untrue.
A parent's "consent" to the creation of a psychological
parent bond need not be explicit. In V.C., our Supreme Court
explained,
Obviously, the notion of consent will have different implications in different factual settings. For example, where a legal parent voluntarily absents herself physically or emotionally from her child or is incapable of performing her parental duties, those
21 A-0878-12T2 circumstances may constitute consent to the parental role of a third party who steps into her shoes relative to the child. As in all psychological parent cases, the outcome in such a case will depend on the full factual complex and the existence of the other factors contained in the test.
[V.C., supra, 163 N.J. at 223 n.6.]
Moreover, the focus of the court's inquiry must always be the
intent and actions of a legal parent during the formation of the
disputed relationship and not the later expressions of a legal
parent about his or her desire to sever the relationship. "The
reason is that the ending of the relationship between the legal
parent and the third party does not end the bond that the legal
parent fostered and that actually developed between the child
and the psychological parent." Id. at 224-25.
In P.B., we extended the holding of V.C. to a neighbor who
asserted custody and visitation rights as the psychological
parent of a child, and explained that where the issue of
standing to assert the claim is contested, "as with any summary
judgment motion, a plenary hearing to resolve disputed factual
issues is necessary." P.B., supra, 370 N.J. Super. at 599.
Guided by these principles, we determine the Family Part
judge erred in concluding there were no genuine issues of
material fact as to F.D.'s consent to the creation of the
disputed relationship. F.D.'s certification that she had not
22 A-0878-12T2 consented, nor D.M.'s concession that F.D. was generally
"resistant" to her involvement in parenting Arthur, are not a
sufficient basis for granting summary judgment in this case.
III.
We reverse the order of the Family Part which dismissed
D.M.'s complaint and we remand for a plenary hearing on whether
D.M. is a psychological parent of Arthur and, if so, whether the
best interests of Arthur require accommodation through a sharing
of custody, visitation, or other relief. We also reverse the
order for counsel fees entered by the Family Part in favor of
K.A.F. and F.D. Counsel fees and costs, if any, will abide
the outcome of the plenary hearing. On remand, the matter
should be assigned to a different Family Part judge. See
Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005)
("[i]n an abundance of caution, we direct that this matter be
remanded to a different judge for the plenary hearing to avoid
the appearance of bias or prejudice based upon the judge's prior
involvement with the matter").
Reversed and remanded. We do not retain jurisdiction.
23 A-0878-12T2