On appeal from Superior Court of New Jersey Chancery Division, Family Part, Bergen County, FD-02-518-00.
Before Judges Skillman, Wecker, and Lesemann.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This is an appeal from an order denying visitation to one who claims that right as a psychological parent pursuant to V.C. v. M.J.B., 163 N.J. 200 (2000). Plaintiff, the former romantic partner of defendant, brought a complaint seeking visitation with defendant's adopted child. Defendant moved to dismiss the complaint for lack of standing, disputing plaintiff's claim to the status of a psychological parent to defendant's child. The Family Part Judge considered the numerous certifications filed by and on behalf of each party, denied plaintiff's application for appointment of an expert to perform a bonding evaluation and for a plenary hearing, and issued a written decision dismissing plaintiff's complaint "entirely based on the issue of standing." We view the order appealed from as one, in effect, granting summary judgment pursuant to R. 4:46-2(c), and we review that judgment under the standard prescribed by Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
On appeal, plaintiff contends that she was entitled to the appointment of an expert to evaluate the bond between her and the child and to a plenary hearing to determine her status as a psychological parent and thus her right to visitation based on the best interests of the child. Plaintiff does not challenge defendant's status or fitness as the child's parent, and both parties agree that this appeal is governed by the Supreme Court's holding in V.C. v. M.J.B., supra, 163 N.J. 200.
We have thoroughly reviewed the record, the briefs, and the arguments of counsel. While plaintiff's pleadings state a cause of action under V.C., which recognizes the standing of one claiming psychological parenthood to seek court ordered visitation, defendant's motion to dismiss was converted to a motion for summary judgment when the court considered the parties' extensive submissions outside the pleadings. See Pressler, Current N.J. Court Rules, comment on R. 4:6-2(e) (2001). We are convinced that Judge Hollenbeck did not err in dismissing plaintiff's complaint once he concluded under Brill that she could not prove her status as a psychological parent. Based on the record before us, and accepting the facts as alleged by plaintiff (as we must, given the posture of the case), we conclude that those facts do not meet the first three prongs of the V.C. test for establishing psychological parenthood. Plaintiff therefore cannot prove her right to visitation contrary to the wishes of defendant, and we affirm the summary judgment dismissing the complaint.
Although the parties' certifications and motions demonstrate numerous factual disputes, none are material to plaintiff's claim. We shall address those facts that are material to the issue before us on the basis of the record that was before the motion judge.*fn1
When the parties met in 1990, defendant was still married and was a practicing attorney. Plaintiff was employed as a paralegal in the office of a matrimonial attorney retained to handle defendant's mother's divorce. The parties do not dispute that they had an intimate, romantic relationship between August 1990 and at least January 1995. Plaintiff contends that that relationship did not end until May or June of 1995.
When defendant left her marital home in 1990, she moved much of her furniture and belongings to her mother's home. Until she acquired her own apartment in Bergen County, where her practice was located, she spent some nights at her mother's home and some nights at plaintiff's home in Union County. By 1993, each party owned her own home and maintained that home as her legal residence. We assume, however, as plaintiff contends, that they spent many nights together at one house or the other.
Both parties agree that defendant hid the romantic aspect of their relationship from her family and friends, maintaining the appearance of a close, platonic friendship. Plaintiff cooperated in keeping the secret, although plaintiff's family was apparently aware of the true nature of the relationship.
Neither party had any children until May, 1995, when defendant traveled to China and adopted a little girl born the previous October. Plaintiff and a law partner of the defendant each loaned defendant $5,000 for the trip and related adoption expenses. Defendant repaid both loans. The baby was six and one half months old when defendant brought her home to New Jersey. Defendant contends that she alone planned the adoption after considering various options for becoming a parent without a partner; plaintiff claims that they planned the adoption together. Nevertheless, the adoption process, including a home study by the adoption agency, as well as court proceedings in China and later in New Jersey, was completed in defendant's name alone. Plaintiff is not mentioned in any record of the adoption. The child was given defendant's family name, and her given names were chosen after defendant's deceased grandparents, following the tradition of defendant's Jewish heritage. Plaintiff asserts that both parties had agreed to the child being raised in the Jewish faith, and that plaintiff, who was raised as a Catholic, intended to convert to Judaism.
Plaintiff herself graduated from law school in 1994 and undertook a judicial clerkship in the 1994-95 court year. In January 1995 plaintiff was injured in an automobile accident. She apparently became disabled from work as a result of that accident and others, and therefore was not employed when defendant brought the baby home from China that spring. Plaintiff also contends that she and her mother and one or more friends shopped for furniture and equipment to prepare plaintiff's home and car for the baby's arrival.
Although plaintiff contends that she participated in the choice of a day care facility and a pediatrician for the child, defendant denies that contention. Assuming that plaintiff was involved in the selection, the day care and medical records list only defendant's name and address as the child's parent. There is no evidence that plaintiff was named in those records as a ...