On appeal from the Superior Court, Appellate Division, whose opinion is reported at 319 N.J. Super. 103 (1999).
The opinion of the court was delivered by: Long, J.
In this case, we are called on to determine what legal standard applies to a third party's claim to joint custody and visitation of her former domestic partner's biological children, with whom she lived in a familial setting and in respect of whom she claims to have functioned as a psychological parent. Although the case arises in the context of a lesbian couple, the standard we enunciate is applicable to all persons who have willingly, and with the approval of the legal parent, undertaken the duties of a parent to a child not related by blood or adoption. *fn1
The following facts were established at trial. V.C. and M.J.B., who are lesbians, met in 1992 and began dating on July 4, 1993. On July 9, 1993, M.J.B. went to see a fertility specialist to begin artificial insemination procedures. She prepared for that appointment by recording her body temperature for eight to nine months prior for purposes of tracking her ovulation schedule. She had been planning to be artificially inseminated since late 1980. According to M.J.B., she made the final decision to become pregnant independently and before beginning her relationship with V.C. Two individuals who knew M.J.B. before she began dating V.C., confirmed that M.J.B. had been planning to become pregnant through artificial insemination for years prior to the beginning of the parties' relationship.
According to V.C., early in their relationship, the two discussed having children. However, V.C. did not become aware of M.J.B.'s visits with the specialist and her decision to have a baby by artificial insemination until September 1993. In fact, the doctor's records of M.J.B.'s first appointment indicate that M.J.B. was single and that she "desires children."
Nonetheless, V.C. claimed that the parties jointly decided to have children and that she and M.J.B. jointly researched and decided which sperm donor they should use. M.J.B. acknowledged that she consulted V.C. on the issue but maintained that she individually made the final choice about which sperm donor to use.
Between November 1993 and February 1994, M.J.B. underwent several insemination procedures. V.C. attended at least two of those sessions. In December 1993, V.C. moved into M.J.B.'s apartment. Two months later, on February 7, 1994, the doctor informed M.J.B. that she was pregnant. M.J.B. called V.C. at work to tell her the good news. Eventually, M.J.B. was informed that she was having twins.
During M.J.B.'s pregnancy, both M.J.B. and V.C. prepared for the birth of the twins by attending pre-natal and Lamaze classes. In April 1994, the parties moved to a larger apartment to accommodate the pending births. V.C. contended that during that time they jointly decided on the children's names. M.J.B. admitted consulting V.C., but maintained that she made the final decision regarding names.
The children were born on September 29, 1994. V.C. took M.J.B. to the hospital and she was present in the delivery room at the birth of the children. At the hospital, the nurses and staff treated V.C. as if she were a mother. Immediately following the birth, the nurses gave one child to M.J.B. to hold and the other to V.C., and took pictures of the four of them together. After the children were born, M.J.B. took a three-month maternity leave and V.C. took a three-week vacation.
The parties opened joint bank accounts for their household expenses, and prepared wills, powers of attorney, and named each other as the beneficiary for their respective life insurance policies. At some point, the parties also opened savings accounts for the children, and named V.C. as custodian for one account and M.J.B. as custodian for the other.
The parties also decided to have the children call M.J.B. "Mommy" and V.C. "Meema." M.J.B. conceded that she referred to V.C. as a "mother" of the children. In addition, M.J.B. supported the notion, both publicly and privately, that during the twenty-three months after the children were born, the parties and the children functioned as a family unit. M.J.B. sent cards and letters to V.C. that referred to V.C. as the children's mother, and indicated that the four of them were a family. The children also gave cards to V.C. that indicated that V.C. was their mother. M.J.B. encouraged a relationship between V.C. and the children and sought to create a "happy, cohesive environment for the children." M.J.B. admitted that, when the parties' relationship was intact, she sometimes thought of the four of them as a family. However, although M.J.B. sometimes considered the children "theirs," other times she considered them "hers".
M.J.B. agreed that both parties cared for the children but insisted that she made substantive decisions regarding their lives. For instance, M.J.B. maintained that she independently researched and made the final decisions regarding the children's pediatrician and day care center. V.C. countered that she was equally involved in all decision-making regarding the children. Specifically, V.C. claimed that she participated in choosing a day care center for the children, and it is clear that M.J.B. brought V.C. to visit the center she selected prior to making a final decision.
M.J.B. acknowledged that V.C. assumed substantial responsibility for the children, but maintained that V.C. was a mere helper and not a co-parent. However, according to V.C., she acted as a co-parent to the children and had equal parenting responsibility. Indeed, M.J.B. listed V.C. as the "other mother" on the children's pediatrician and day care registration forms. M.J.B. also gave V.C. medical power of attorney over the children.
A number of witnesses testified about their observations of the parties' relationship and V.C.'s role in the children's lives. V.C.'s mother testified that M.J.B. told her that V.C. and M.J.B. would be co-parents to the children and that the parties made a joint decision to have children. In addition, she observed that M.J.B., V.C. and the children functioned as a family. Likewise, L.M., a co-worker and friend of M.J.B., testified that she spent time with the parties before, during and after M.J.B.'s pregnancy, and that she regarded the parties as equal co-parents to the children.
Another co-worker and friend of M.J.B., D.B., also testified that V.C. was a co-parent to the children. In addition, D.B. revealed that M.J.B. planned to continue the relationship between V.C. and the children after the breakup, as long as V.C. contributed money toward the children's expenses. However, another witness, A.R., indicated that V.C. was minimally involved in taking care of the children, but acknowledged that V.C. had an important role in the twins' lives. Testifying for M.J.B., both A.R. and M.I. stated that they regarded M.J.B. as the children's primary caretaker.
Together the parties purchased a home in February 1995. Later that year, V.C. asked M.J.B. to marry her, and M.J.B. accepted. In July 1995, the parties held a commitment ceremony where they were "married." At the ceremony, V.C., M.J.B. and the twins were blessed as a "family."
Together, V.C. and M.J.B. joined the Lambda family organization, made up of lesbian and gay parents or expectant parents. The Lambda family organization is a social group in which children become aware of other families that also have gay and lesbian parents. V.C. and M.J.B., together with the children, attended at least ten Lambda functions.
Additionally, as a group, V.C., M.J.B. and the twins attended family functions, holidays, and birthdays. According to V.C., she did not attend family functions with M.J.B.'s family because they were unhappy about M.J.B.'s sexual orientation. However, V.C. claimed that M.J.B. had a very good relationship with V.C.'s mother, S.D., and that the children were very close to V.C.'s family. Apparently, the children referred to S.D. as "Grandma," and to V.C.'s grandmother, as "greatgrandma."
During their relationship, the couple discussed both changing the twins' surname to a hyphenated form of the women's names and the possibility of V.C. adopting the children. M.J.B. testified that the parties considered adoption and in June 1996 consulted an attorney on the subject. M.J.B. paid a two thousand dollar retainer, and the attorney advised the parties to get letters from family and friends indicating that the parties and the twins functioned as a family. The parties never actually attempted to get the letters or proceed with the adoption. V.C. alleged that M.J.B. was willing to go through with the adoption even after the parties split.
Just two months later, in August 1996, M.J.B. ended the relationship. The parties then took turns living in the house with the children until November 1996. In December 1996, V.C. moved out. M.J.B. permitted V.C. to visit with the children until May 1997. During that time, V.C. spent approximately every other weekend with the children, and contributed money toward the household expenses.
In May 1997, M.J.B. went away on business and left the children with V.C. for two weeks. However, later that month, M.J.B. refused to continue V.C.'s visitation with the children, and at some point, M.J.B. stopped accepting V.C.'s money. M.J.B. asserted that she did not want to continue the children's contact with V.C. because she believed that V.C. was not properly caring for the children, and that the children were suffering distress from continued contact with V.C. Both parties became involved with new partners after the dissolution of their relationship. Eventually, V.C. filed this complaint for joint legal custody. *fn2
At trial, expert witnesses appeared for both parties. Dr. Allwyn J. Levine testified on behalf of V.C., and Dr. David Brodzinsky testified on behalf of M.J.B. Both experts arrived at similar conclusions after having examined the women individually and with the children, and after examining the children separately.
Dr. Levine concluded that both children view V.C. as a maternal figure and that V.C. regards herself as one of the children's mothers. "[B]ecause the children were basically parented from birth" by V.C. and M.J.B. "until they physically separated," Dr. Levine concluded that the children view the parties "as inter-changeable maternal mothering objects" and "have established a maternal bond with both of the women."
Dr. Levine likened the parties' relationship to a heterosexual marriage. Consequently, the children would be affected by the loss of V.C. just as if they had been denied contact with their father after a divorce. Dr. Levine explained that the children would benefit from continued contact with V.C. because they had a bonded relationship with her. Dr. Levine further noted that if the children felt abandoned by V.C., they might also feel unnecessary guilt and assume that they made V.C. angry or somehow caused the parties' separation. Although the doctor believed that the children could adapt to the loss of V.C., he indicated that the long-term effects were unknown. Furthermore, Dr. Levine indicated that the animosity between V.C. and M.J.B. could harm the children, but surmised that counseling could lessen the parties' animosity.
Likewise, Dr. Brodzinsky concluded that V.C. and the children enjoyed a bonded relationship that benefitted both children. Dr. Brodzinsky determined that the children regarded V.C. as a member of their family. The doctor believed that it was normal for young children to feel that way about a person with whom they have spent considerable time. However, Dr. Brodzinsky noted that as children "get older, family becomes more specifically tied . . . to biological connections." The doctor's report indicated that, when asked who their mother was, the children did not immediately point to V.C., but upon further inquiry agreed that V.C. was their mother. The doctor further noted that the children viewed M.J.B's new partner as a current member of their family. Dr. Brodzinsky expressed concern that, if visitation were permitted, the parties' animosity would negatively impact the children. The doctor, however, acknowledged that counseling would reduce the level of animosity between the parties. Dr. Brodzinsky further recognized that the children would suffer some short-term stress from the loss of V.C. but would likely recover in time.
In contrast to Dr. Levine's opinion, Dr. Brodzinsky believed that the loss of V.C. was not akin to the loss of a parent in a heterosexual divorce. The doctor explained that societal views foster the expectation that a child and a parent will continue their relationship after a divorce, but that no similar expectation would exist for the children's relationship with V.C. Still, Dr. Brodzinsky testified that "[t]he ideal situation is that [M.J.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 [V.C.] who's important to them." Assuming that the parties could maintain a reasonably amicable relationship, Dr. Brodzinsky felt that the children "would probably benefit from ongoing contact [with V.C.] as they would with any person with whom they have a good solid relationship that can nurture them."
The trial court denied V.C.'s applications for joint legal custody and visitation because it concluded that she failed to establish that the bonded relationship she enjoyed with the children had risen to the level of psychological or de facto parenthood. In so doing, the court gave significant weight to the fact that the decision to have children was M.J.B.'s, and not a joint decision between M.J.B. and V.C.
Finding that V.C. did not qualify as a psychological parent to the children, the trial court opined that it would "only be able to consider [V.C.'s] petition for custody if [she] was able [to] prove [M.J.B.] to be an unfit parent." Because V.C. did not allege that M.J.B. was an unfit parent, the trial court held that V.C. lacked standing to petition for joint legal custody. The court also denied V.C.'s application for visitation, determining that even a step-parent would not be granted such visitation except for equitable reasons, not present here. Further, it resolved that visitation was not in the children's best interests because M.J.B. harbored animosity toward V.C. that would "inevitably pass along to the children." According to the trial court, the case might have been different had V.C. "enjoyed a longer and more irreplaceable relationship with the children . . . ." Upon the entry of judgment, V.C. appealed.
On March 5, 1999, an Appellate Division panel decided the case in three separate opinions. 319 N.J. Super. 103. Judge Stern authored the majority opinion, which affirmed the denial of V.C.'s application for joint legal custody but reversed the denial of her petition for visitation. Id. at 106. In so doing, the court concluded that V.C. had established a parent-like relationship and "stood in the shoes of a parent." Id. at 119. The majority analyzed the case under the best interests of the child standard, and, based on the record before it, determined that joint legal custody was not in the best interests of the children. Id. at 119. The trial court's judgment denying V.C.'s petition for joint custody was affirmed. Id. at 119-20.
As to visitation, although recognizing that animosity between the parties is an important factor in the best interests test, the majority concluded that M.J.B. cannot deprive V.C. or the twins of visitation simply because M.J.B. harbors negative feelings toward V.C. Id. at 118. Relying on the experts' testimony, the majority concluded that V.C.'s continued contact with the children is in their best interests; therefore, it reversed the judgment denying V.C.'s petition for visitation and remanded for proceedings to establish a visitation schedule. Id. at 119-20.
The two partial dissenters staked out opposite positions on the issues. Judge Braithwaite determined that V.C. does not qualify as a psychological parent and thus would have denied both joint custody and visitation. Judge Wecker concluded that V.C. qualifies as a psychological parent and that the best interests standard necessarily applies to both visitation and custody. Id. at 137. She would have granted visitation on the record before her and remanded for a best interests hearing on joint custody.
An order for visitation was established on March 26, 1999. Both M.J.B. and V.C. appealed as of right from the dissents discussed above. R. 2:2-1(a)(2). M.J.B. also moved for a stay. Thereafter, we ...