Before Judges Stern, Braithwaite and Wecker.
The opinion of the court was delivered by: Stern, P.j.a.d.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County.
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: *fn1
"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, *fn2 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 defendant *fn3 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." *fn4 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.
"[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- ...