Argued January 6, 2014
Approved for Publication August 6, 2014.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket Nos. FM-11-830-11 and FD-11-996-12.
Abbey True Harris argued the cause for appellant ( Fox Rothschild LLP and Jerner & Palmer, P.C., attorneys; Jennifer Weisberg Millner, Ms. Harris, Tiffany Palmer and Rebecca G. Levin, of counsel and on the brief; Lauren Koster Beaver and Michael Coco, on the brief).
Robin T. Wernik argued the cause for respondents ( Wernik & Salvatore, attorneys; Ms. Wernik and David Salvatore, of counsel and on the brief).
Gibbons P.C., attorneys for amicus curiae National Center for Lesbian Rights ( Lawrence S. Lustberg, on the brief).
Before Judges PARRILLO, Harris and KENNEDY.
[437 N.J.Super. 127] KENNEDY, J.A.D.
This appeal arises from a custody and visitation dispute between D.L.M. (D.M.), a step-parent of now twelve-year old Arthur, on the one hand, and K.A.F., the biological mother of Arthur, and F.D., the adoptive parent of Arthur and former domestic partner of K.A.F., on the other. D.M., a subsequent and now former domestic partner of K.A.F., filed a complaint in the Family Part seeking custodial and visitation rights as a " psychological parent" of Arthur pursuant to V.C. v. M.J.B., 163 N.J. 200, 748 A.2d 539, cert. denied, 531 U.S. 926, 121 S.Ct. 302, 148 L.Ed.2d 243 (2000). K.A.F. and F.D. filed an answer and opposed D.M.'s complaint.
Although the parties submitted highly detailed certifications and other documents in support of their respective positions, which clearly raised many material factual issues that would have warranted a plenary hearing, the Family Part judge dismissed D.M.'s complaint on a motion for summary judgment, having determined that " there's no genuine issue of material fact" suggesting that F.D. had ever consented to a psychological parent relationship between D.M. and Arthur, and that " [w]hen two involved parents and fit parents are involved in [the child's] life an application under V.C. . . . require[s] both to consent" to the creation of the claimed relationship before a court may even address the issue. We disagree with both conclusions, and therefore we reverse the order of dismissal and remand this matter for a plenary hearing.
Because of the clearly contested facts, which the judge and the parties acknowledge, we recite only a brief history of the relationships of the parties as gleaned from the materials presented. Many additional factual averments material to the question before us are contained in the parties' opposing certifications. We shall thereafter review the principles of law which guide the Family Part's determinations in such cases.
[437 N.J.Super. 128] I.
K.A.F. and F.D. had been romantically involved since 1998, and in 1999 began living together. In 2000, the two women bought a house and thereafter decided to have a child. They made arrangements with an entity to obtain a sperm donor, and they agreed that K.A.F. would carry the child. All went as planned, and Arthur was born in December 2002.
Although their relationship became strained thereafter, causing them to begin living separately in June 2004, K.A.F. and F.D. apparently harbored hope for a reconciliation at some time and agreed to share equal time with Arthur and make joint decisions as to his care and welfare. On March 3, 2005, F.D. formally adopted Arthur with the consent of K.A.F., and in November of that year Arthur's birth certificate was issued listing both K.A.F. and F.D. as his parents.
In the meantime, D.M., a friend of both F.D. and K.A.F., became romantically involved with K.A.F. and they moved in together in the Fall of 2004. They subsequently bought a home and formalized their domestic partnership in May 2006.
According to D.M., she and K.A.F. " equally shared parental responsibility" for Arthur when he resided in their home. K.A.F. concedes that D.M. " participated in aspects of [Arthur's] care," but disputes the extent of the role D.M. actually undertook. F.D. also concedes that she has no direct knowledge about the extent of D.M.'s role with Arthur when he lived with K.A.F. and D.M., but claims " [a]t all times I have adamantly and wholeheartedly opposed [D.M.'s] attempts to parent" Arthur.
[437 N.J.Super. 129] In any event, strains developed over time in the relationship between K.A.F. and D.M., resulting in D.M. leaving their home in March 2010. From that date through May 2011, D.M. had more or less regular visitation with Arthur, including weekly overnight stays. However, this arrangement began to end in June 2011, and ceased altogether in November 2011, amidst an angry confrontation between D.M. and K.A.F. In January 2012, K.A.F. advised D.M. in writing that she would no longer allow her to have any contact with Arthur.
On October 12, 2011, the court entered judgment dissolving the domestic relationship between K.A.F. and D.M. In February 2012, D.M. filed a complaint in the Family Part seeking " joint custody" of Arthur and a " reasonable visitation schedule," as well as other relief. K.A.F. and F.D. opposed the complaint, and, as we have explained, the Family Part judge dismissed the complaint on a motion for summary judgment. This appeal followed.
As noted earlier, the judge made two rulings which we are asked to review: the first ruling is that there is no genuine issue of material fact suggesting that F.D. ever consented to the creation of a psychological parent relationship between D.M. and Arthur; and the second is that where there are two fit and involved parents, both must have consented to the creation of a psychological parent relationship before a third party can maintain an action for visitation and custody based on the existence of that relationship. Although these two issues are intertwined, we shall examine them separately for purposes of clarity. Because the [437 N.J.Super. 130] question of consent is a matter of first impression, we shall begin there.
Plainly stated, the issue is whether F.D.'s alleged lack of consent to D.M.'s performance of parental duties as to Arthur, if true, necessarily deprives D.M. of standing to bring this action. We hold it does not.
K.A.F. and F.D. argue that D.M. cannot attain the legal status of a psychological parent ...