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Cumberland County Board Of Social Services v. W.J.P.

July 14, 2000

CUMBERLAND COUNTY BOARD OF SOCIAL SERVICES, PLAINTIFF-RESPONDENT,
v.
W.J.P., DEFENDANT-APPELLANT, AND G.D., DEFENDANT.



Before Judges Havey, Keefe and A. A. Rodr¡guez.

The opinion of the court was delivered by: Rodriguez, A. A., J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: February 28, 2000

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County.

In this appeal, a stepfather appeals from the Family Part's order directing that both he and the biological father of a minor each pay support for her benefit. The Family Part judge reasoned that the stepfather's obligations are premised on the fact that he acted in loco parentis. We hold that once a natural parent has been identified, has been ordered to pay support, and establishes a relationship with the minor, in loco parentis support cannot be compelled from a stepfather.

These are the pertinent facts. Anne is now age eleven. *fn1 Anne's mother and W.J.P. had a relationship from which one son was born. The relationship ended sometime in 1987. Anne's mother then began a relationship in December 1987 with G.D. Anne is the result of this union. Before Anne was born, her mother and G.D. ended their relationship. She then rekindled her relationship with W.J.P. When Anne was born, she received her mother's surname. Anne's mother did not identify anyone as the father on the birth certificate. Eight months later, she and W.J.P. were married. Thereafter, they had another son and two years later they separated.

During the separation, Anne's mother filed a complaint against W.J.P. for paternity of Anne. She also sought child support for all three children. W.J.P. agreed to paternity and child support, which was memorialized in a consent order. This order also directed the Bureau of Vital Statistics to issue a new birth certificate for Anne using W.J.P.'s surname. Three years later, Anne's mother and W.J.P. divorced. The final judgment of divorce provided that W.J.P. was to pay support for the two boys and Anne. Sometime in 1996, Anne's mother told her that G.D. was her natural father, not W.J.P. Since that time, W.J.P. has had virtually no contact with Anne. In August 1997, W.J.P. and Anne's mother stipulated that Anne be removed from the child support order. A consent order to this effect was entered by the court and the amount of support was reduced proportionally.

Several months later, Anne's mother applied for public assistance benefits from the Cumberland County Board of Social Services (Board). She disclosed that the natural father of her two boys was W.J.P. and the natural father of Anne was G.D. The Board filed a complaint for paternity against G.D., which he denied. The trial court ordered G.D. to undergo Human Leucocyte Antigen (H.L.A.) testing and W.J.P. was joined as a party in the paternity action. The judge directed that a Guardian ad Litem be appointed from the pro bono list in order to safeguard Anne's best interests. Thereafter, the Guardian ad Litem, Christen D'Arrigo, met with Anne and submitted a report to the trial court. The report recommended that G.D. and W.J.P. be ordered to submit to genetic paternity testing. The report also contains the following observation by the Guardian ad Litem:

Indeed, the realization that [WJP] is not her father has somewhat softened the rejection [Anne] has suffered from [him]. . . .it was apparent to me that under no circumstances would she accept anyone other than her biological father as her "father."

The judge ordered G.D. and W.J.P. to undergo genetic paternity testing and that all parties share financial information. Thereafter, based on the genetic test results, G.D. admitted to paternity of Anne and he arranged for visitation with her.

After hearing oral argument from all parties, including the Guardian ad Litem, the judge ordered both G.D. and W.J.P. to pay child support reimbursement to the Board. The judge also ordered that the fee for the Guardian ad Litem be paid equally by G.D. and W.J.P. The judge also ordered both men to obtain a $50,000 life insurance policy for Anne's benefit, to remain in effect until Anne's emancipation. Lastly, G.D. was ordered to pay for the genetic testing. The judge issued a written opinion memorializing the oral decisions.

W.J.P. appeals the obligations to pay support and to provide life insurance coverage for Anne (December 16, 1998 order), and the obligation to pay one-half of the Guardian ad Litem fee (December 18, 1998 order). He contends that the judge erred by ordering him to pay support for Anne when her natural father has an obligation to provide support for her. W.J.P. asserts that he does not stand in loco parentis with Anne as determined by the trial court.

At common law, parents had an absolute duty to support their children. Monmouth County Div. of Soc. Serv. for D.M., n/k/a D.W. v. G.D.M., 308 N.J. Super. 83, 87-88 (Ch. Div. 1997). There is no statutory requirement in New Jersey imposing a duty of support on third- party non-parents. Nonetheless, a person, other than a child's natural or adoptive parent, may be charged with a parent's duties and responsibilities if he or she stands in loco parentis. Miller v. Miller, 97 N.J. 154, 167 (1984). "The proper definition of a person in loco parentis to a child is a person who means to put himself [or herself] in the situation of the lawful father [or mother] of the child with reference to the father's [or mother's] office and duty of making provision for the child." D. v. D., 56 N.J. Super. 357, 361 (App. Div. 1959) (citing with approval Brinkerfhoff and wife v. Merselis' Executors, 24 N.J.L. 680, 683 (Sup. Ct. 1855)).

Generally, an in loco parentis relationship does not permanently affix parental duties upon a step-parent. Ibid. That is, the relationship can be disclaimed after a step-parent divorces a child's natural parent. Nonetheless, courts have held that a step-parent's duty to support a spouse's child may extend beyond the dissolution of their marriage. See M.H.B. v. H.T.B., 100 N.J. 567 (1985); Miller, supra, 97 N.J. at 154; C.R. v. J.G., 306 N.J. Super. 214 (Ch. Div. 1997). In these cases, courts have relied ...


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