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P.B. v. T.H.

July 08, 2004


On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Essex County, FD-07-1911-01.

Before Judges Kestin, Cuff and Axelrad.

The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned).


Argued: May 5, 2004

The issue raised in the litigation that gave rise to this appeal involves the standard by which a third party non-relative may acquire standing to seek custody of a child. This case involves a custody dispute between a neighbor who took over the care of an infant and the child's maternal aunt who had been previously awarded custody. Twice, the trial court awarded custody to the neighbor. We reversed and remanded the first award due to the trial court's failure to apply the test enunciated in V.C. v. M.J.B., 163 N.J. 200, cert. denied, 531 U.S. 926, 121 S.Ct. 302, 148 L.Ed. 2d 243 (2000), to determine whether the third party had standing to seek custody as a"psychological parent." Following remand, the trial judge found in favor of the neighbor once again. We now affirm.


Shortly after V.H.'s birth on February 8, 1996, she and her older brother were taken away from their mother, a substance abuser, and placed in foster care. A New York human services agency located the children's maternal aunt, T.H., defendant in this matter, and convinced her to take custody of the children. The children's natural mother consented to an order in the Family Court of New York on April 17, 1996, awarding permanent custody of V.H. and her brother to T.H. V.H., then two months old, and her brother immediately commenced residence with their aunt in an apartment in Lyndhurst, New Jersey. T.H., a single parent of a six-year-old daughter, was pregnant at the time, and gave birth to a son shortly after the arrival of V.H. and her brother in the household. Following a six-week maternity leave, T.H. returned to work as a bus driver from July through September 1996, after which she resigned her job and remained unemployed until she obtained part-time employment in early 1998 and full-time employment in June or July 1998.

T.H. was overwhelmed by the sudden growth in her family from one to four children. Plaintiff, P.B., a friend and downstairs neighbor (sometimes referred to in this opinion as"neighbor"), came to her assistance and began caring for V.H. and the other children, as did T.H.'s other friends. The nature and extent of the neighbor's involvement in V.H.'s care over the next four years was disputed by the parties. The neighbor asserted that V.H.'s aunt"gladly turned over the full physical and emotional responsibility of [V.H.] to us." According to P.B., she began taking V.H. overnight, and over a short period of time V.H. moved into her apartment and she and her adult daughter Tami"took over the full time care and responsibility" of V.H. without compensation and, other than the payment of V.H.'s school costs,"totally supported [V.H.] both emotionally, materially and intellectually." P.B. referred to her household as"the only home that [V.H.] has known since birth."

T.H. acknowledged that P.B. assisted her with the children after work and that V.H. would occasionally spend the night at the neighbor's apartment. T.H. contended, however, that she "arranged for all of the daycare the child attended while both parties worked... [and] [a]ttended... conferences, paid for school and transportation, and was considered the parent by the school." T.H. claimed that she, P.B., and several other friends and family,"operated as a large extended family." T.H. further claimed she neither consented to nor fostered the neighbor's relationship with V.H. T.H. conceded, however, that in 1999, she and P.B. were spending equal amounts of time with the child, and in March 2000, V.H. relocated with the neighbor and her daughter from the apartment complex to a single family home in Belleville that P.B. had recently purchased.

In the summer of 2000, T.H. informed her neighbor she intended to return V.H. and her older brother to her sister, the children's natural mother who was living in New York, because she felt her sister had been rehabilitated and deserved another chance with her children. When P.B. informed T.H. she would oppose the proposed custody change to V.H.'s mother, the aunt became antagonistic. On September 5, 2000, T.H. presented V.H.'s preschool with the l996 New York custody order in her favor and removed the neighbor's name from the list of those authorized to pick up V.H. from school. T.H., as the legal custodian, took V.H. from the neighbor's home, and V.H. began living with her aunt and her three children in her studio apartment in Paterson.*fn1 T.H. also obtained a temporary restraining order against P.B., alleging she and P.B. were formal household members and that P.B. would stalk and harass her and her family. The order was eventually dissolved.

V.H.'s natural mother filed an application in the New York court to transfer custody of both children to her, returnable on September 27, 2000. While the matter was pending, P.B. filed a complaint and order to show cause in Family Part/Essex County for immediate return and custody of V.H.

T.H. joined in the New York custody application and she and her sister appeared at the proceeding. P.B. appeared with her New Jersey counsel who was admitted pro hac vice. Judge Edlitz of the New York State court declared New Jersey to be the"home state" and deferred to its jurisdiction. V.H.'s ten-year-old brother was returned to the custody of his natural mother without opposition.

On the return date of the order to show cause, the Family Part judge retained the aunt as the temporary residential custodian of V.H. and established visitation between the neighbor and the child.


T.H. moved to dismiss P.B.'s New Jersey custody action for lack of standing. The court deferred ruling on the motion prior to trial. The trial proceeded, and at the end of plaintiff's case the court heard further argument on the motion and denied it. The trial concluded after eight days of testimony. Thereafter, the court determined that the four-prong test to evaluate whether a third party had become a psychological parent, prescribed in V.C., supra, 163 N.J. 200, was inapplicable to the factual circumstances of the case because the parties did not have a"couple relationship" or"an intentionally shared family life." The court saw the holding in V.C. as limited to a custody dispute"between a biological parent and a non-family member with whom the biological parent had essentially established a family relationship[.]"

Upon determining the four-prong V.C. test was not applicable, the trial court found a different basis on which to conclude that P.B., an unrelated third party, did have standing to seek custody of V.H. Because the dispute was between an"aunt and a non-family member," the judge concluded that"in those kind[s] of cases, as noted in the Watkins*fn2 case, what standard applies is the best interest standard."

The trial court permitted the bonding evaluation and testimony of Dr. Mathias Hagovsky, who opined the neighbor was V.H.'s psychological parent, to substitute for the V.C. standard. In reliance on Dr. Hagovsky's report and testimony, the court concluded P.B. was the psychological parent of V.H., thereby entitling her to standing. The judge then awarded custody to P.B., finding that to be in V.H.'s best interests. T.H. appealed, challenging only the issue of P.B.'s standing and the procedures followed by the trial court to determine that issue.

The record does not disclose the full extent of V.H.'s living arrangements and the visitation arrangement with P.B. following the trial judge's August 17, 200l order granting residential custody to the neighbor. At oral argument we were advised that V.H. resumed living with P.B. ...

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