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A.B. v. S.E.W.

April 01, 2003

A.B. AND S.B.W., PLAINTIFFS-APPELLANTS,
v.
S.E.W., DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

In this appeal, the Court considers whether the trial court erred when it refused to reopen and reconsider a prior order denying plaintiff A.B. visitation with her former domestic partner's daughter.

Plaintiff A.B. and defendant S.E.W. were domestic partners from November 1988 to November 1996. At some point during the relationship, they decided that they both should become pregnant through artificial insemination. Defendant become pregnant first and gave birth to K.W. in April 1993. Plaintiff participated both in defendant's Lamaze classes and in K.W.'s birth and delivery. Following the birth, plaintiff participated in K.W.'s day-to-day care. K.W. was given plaintiff's surname as a middle name and K.W. referred to both plaintiff and defendant as "Mama G and Mama Li'l."

In October 1994, plaintiff gave birth to S.B.W. After S.B.W.'s birth, the relationship between plaintiff and defendant soured. The couple's friends observed plaintiff's anger and resentment toward defendant. K.W.'s child care provider testified that just before the couple's eventual separation, K.W. was violent, irritable, and withdrawn, but that afterward, she was well behaved. Other witnesses also observed that during the time when the couple was experiencing problems, K.W.'s behavior and demeanor changed, noting that she had become rude and agitated toward the plaintiff. They further testified that K.W. had become calm, more affectionate, and happy following the couple's separation.

The couple ended their cohabitation in November 1996. Defendant denied plaintiff's repeated requests for visitation with K.W., prompting plaintiff to file suit for visitation in March 1997. After hearing testimony from both fact and expert witnesses, the trial court found that although plaintiff had established that she had stood in loco parentis to K.W., she had not proved by a preponderance of the evidence that visitation would be in K.W.'s best interests. In reaching that determination, the trial court noted specifically the improvement in K.W.'s behavior since the separation and the fact that she had not asked about S.B.W. during the year prior to the hearing and only rarely had asked for plaintiff. The trial court therefore denied visitation to plaintiff in a decree entitled "final order," dated September 9, 1998. Plaintiff did not appeal that determination.

In August 2000, several months after the Supreme Court's decision in V.C. v. M.J.B., 163 N.J. 200, cert. denied, The opinion of the court was delivered by: Verniero, J.

Argued February 4, 2003

In V.C. v. M.J.B., this Court articulated the standard to be applied when determining whether a party, on the basis of his or her claimed status as a psychological parent, should be awarded custody of, and visitation with, a former domestic partner's biological children. 163 N.J. 200, 205, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000). Nearly two years before we decided V.C., the trial court in this case entered a final order denying plaintiff visitation with her former partner's daughter. Plaintiff did not appeal that determination. In her present application, plaintiff argues that V.C. should be applied to her case, requiring the trial court to reopen and reconsider the prior order. We hold that the trial court did not err in denying that application.

I.

Briefly summarized, these are the pertinent facts derived largely from testimony before the trial court that entered the original order. A.B. (plaintiff) and S.E.W. (defendant) were domestic partners from November 1988 to November 1996. They decided that they both would become pregnant through artificial insemination. Defendant gave birth to K.W. in April 1993. Plaintiff had participated in defendant's Lamaze classes and was in the delivery room at K.W.'s birth. The parties announced K.W.'s arrival, both in the newspaper and to friends, with language that included both names as parents. Defendant gave K.W. plaintiff's surname as a middle name.

Plaintiff dressed and fed K.W. during the period when defendant sought employment soon after the birth. Plaintiff changed diapers, transported K.W. to and from day care, and provided financial support to the household. Plaintiff played with K.W. as an infant and later supervised her on visits to the pool. Defense witnesses indicated that defendant performed most of the housework. K.W. called plaintiff "Mama G" and called defendant "Mama Li'l."

Plaintiff gave birth to S.B.W. in October 1994. The same anonymous sperm donor who contributed to K.W.'s conception also contributed to S.B.W.'s conception. After S.B.W.'s birth, the relationship between plaintiff and defendant soured. The couple's friends observed plaintiff's purported anger and resentment toward defendant. The trial court observed that "[t]his behavior affected [K.W.]." Specifically, the child threw temper tantrums, told defendant to "shut up," and once hit defendant. K.W.'s day care provider testified that just prior to the couple's eventual separation, K.W. was violent, irritable, and withdrawn, but that afterward she was well behaved.

The trial court summarized the testimony of another witness, a friend of the parties:

[The witness] testified that [K.W.'s] demeanor and behavior changed during the fall, 1995, at the time of the parties' problems. She noted that [K.W.] began to treat and speak to the defendant in a rude and agitated manner similar to the manner exhibited by the plaintiff towards the defendant. Since ...


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