K.A.F. v. D.L.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0878-12T2

K.A.F.,1
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
August 6, 2014
v.
APPELLATE DIVISION
D.L.M.,

Defendant-Appellant.
_________________________________

D.L.M.,

Plaintiff-Appellant,

v.

K.A.F. and F.D.,

Defendants-Respondents.
_________________________________

Argued January 6, 2014 – Decided August 6, 2014

Before Judges Parrillo, Harris and Kennedy.

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.

1
We refer to the parties by their initials to preserve their
privacy. We refer to the child by a pseudonym for the same
reason.
 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).

The opinion of the court was delivered by

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, 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

2 A-0878-12T2
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.

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

3 A-0878-12T2
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.2

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

2
F.D., as an adoptive parent, is entitled to the same
"relationships, rights and responsibilities" with respect to
Arthur as if he were born to her. N.J.S.A. 9:3-50(b); Zack v.
Fiebert, 235 N.J. Super. 424, 429 n.1 (App. Div. 1989); In re
Adoption of G., 89 N.J. Super. 276, 281 (Cty. Ct. 1965).

4 A-0878-12T2
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.3

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.4 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,

3
Within the materials provided on appeal are documents which can
be read to dispute the extent of F.D.'s opposition to D.M.'s
role with Arthur. D.M. concedes only that F.D. was generally
"resistant" to her involvement as a parent to Arthur. We simply
note these documents and averments and, of course, come to no
conclusion about this issue, which would have to be resolved
following a plenary hearing.
4
That judgment was entered following a complaint filed by K.A.F.
D.M. did not seek any relief respecting Arthur at that time.

5 A-0878-12T2
and, as we have explained, the Family Part judge dismissed the

complaint on a motion for summary judgment. This appeal

followed.

II.

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 question of consent is a matter of first

impression, we shall begin there.

A.

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 because F.D. did not consent to

6 A-0878-12T2
D.M. forming a parent-child relationship with Arthur. Their

argument, which was adopted by the Family Part judge, is that

where there are two fit and active parents, both legal parents

must have consented to the development of a psychological parent

relationship between a third party and their child in order for

the third party to have standing to advance that claim in the

first instance. They argue that the consent of only one

custodial parent is not enough. We fail to perceive any basis

for this argument either in the law or the policies underlying

the concept of a psychological parent.

The theory of psychological parentage was first enunciated

in Sorentino v. Family & Children's Soc. of Elizabeth, 72 N.J.

127 (1977), where our Supreme Court recognized that there is a

"serious potential for psychological harm to young children if

they are removed from a foster home where they had lived and

been nurtured during their early years." Zack, supra, 235 N.J.

Super. at 430, n.3.

In Sorentino, the sixteen year-old mother of a newborn

child surrendered the child for temporary foster care to the

defendant agency after the child's natural father, then eighteen

years of age, refused to marry her. 72 N.J. at 129. She

thereafter surrendered the child for adoption under

circumstances the trial court later found to be coercive. Ibid.

7 A-0878-12T2
The natural father learned of the surrender of the child for

adoption within two months of the child's birth, went to the

agency to lodge his protest, and was rebuffed. Ibid.

Fourteen months later, the natural parents, having married,

filed a complaint to regain custody of their child. Id. at 130.

The trial judge found both natural parents fit to take custody,

and determined that the mother had surrendered the child as a

consequence of undue pressure by the defendant agency and that

the father, being known and acknowledging parenthood, had been

denied his "constitutional rights." Ibid.

Although no formal adoption proceedings had been instituted

by the time the case reached the Supreme Court over two years

after the child's birth, the child had remained in the custody

of the prospective adoptive parents. The Supreme Court held

that the trial judge had a sufficient evidential basis for his

findings of fact and that ordinarily such a determination would

warrant "an immediate vesting of custody of the child in the

natural parents." Id. at 131. The Court then explained,

We are given pause, however, in adjudicating
such a summary and drastic change in the
life circumstances of this child, now 31
months old. We are confronted with the
potentiality of serious psychological injury
to the child, in the evaluation of which
substantial significance should attach to
the length of time the child has been with
the prospective adopting parents and to the
quality of the developing relationship. See

8 A-0878-12T2
 Commonwealth ex rel. Bankert v. Children's
Services, 224 Pa. Super. 556 (Super. Ct.
1973); Note, "Increasing the Rights of
Foster Parents," 36 U. Pitt. L. Rev. 715,
723 (1975). Cf. In re Adoption of a Child
by R.D., supra, 127 N.J. Super. at 316; In
re P., and wife, 114 N.J. Super. 584, 593 et
seq. (App. Div. 1971); Note, "Alternatives
to 'Parental Right' in Child Custody
Disputes Involving Third Parties," 73 Yale
L.J. 151, 158 et seq. (1963). We are not
suggesting that such a potentiality suffices
as a matter of law to justify a reversal in
this case. However, the potentiality does
require a hearing and determination on the
issue.

[Id. at 131-32.]

The Court went on to hold that the "possibility of serious

psychological harm to the child in this case transcends all

other considerations." Id. at 132.

While a natural parent's right to the care, custody, and

control of his or her child is a "fundamental right to parental

autonomy," N.J. Div. of Youth & Family Servs. v. P.W.R., 205

N.J. 17, 38 (2011), and is recognized as "a fundamental liberty

interest protected by the Due Process Clause of the Fourteenth

Amendment to the United States Constitution[,]" Moriarty v.

Bradt, 177 N.J. 84, 101 (2003), cert. denied, 540 U.S. 1177, 124

S. Ct. 1408, 158 L. Ed. 2d 78 (2004); see also Prince v.

Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 442, 88 L. Ed.

645, 652 (1944); Watkins v. Nelson, 163 N.J. 235, 245 (2000);

V.C., supra, 163 N.J. at 218, that right, as noted in Sorentino,

9 A-0878-12T2
is not absolute. The presumption in favor of the parent will be

overcome by "a showing of gross misconduct, unfitness, neglect,

or 'exceptional circumstances' affecting the welfare of the

child[.]" Watkins, supra, 163 N.J. at 246.

In V.C., our Supreme Court explained that "[s]ubsumed

within" the category of "exceptional circumstances" is the

"subset known as the psychological parent cases in which a third

party has stepped in to assume the role of the legal parent

. . . ." V.C., supra, 163 N.J. at 219. The "exceptional

circumstances" exception does not require proof that a parent is

unfit. The Court has explicitly stated that "exceptional

circumstances" may rebut the presumption in favor of a parent

seeking custody even if there is not a basis for terminating

parental rights on statutory grounds and, indeed, even if the

parent is "deemed to be a fit parent." Watkins, supra, 163 N.J.

at 246-48; see also V.C., supra, 163 N.J. at 219; Sorentino,

supra, 72 N.J. at 131-32. "'[E]xceptional circumstances' based

on the probability of serious psychological harm to the child

may deprive a parent of custody." Watkins, supra, at 246-47

(citing Sorentino, supra, 72 N.J. at 131-32).

Although observing that the full scope of the "exceptional

circumstances" exception remained undefined and would evolve

through a case-by-case development, the Court also clarified its

10 A-0878-12T2
intent that the scope of the exception was not so narrow as to

be limited to cases such as Sorentino, in which the parents were

"complete strangers" to the child or unfit. Id. at 247.

Specifically, "exceptional circumstances" may exist "if a change

in custody will cause serious psychological harm to a child."

Ibid.

Psychological parent cases, as noted, constitute a subset

of "exceptional circumstances" cases, in recognition of

children's "strong interest in maintaining the ties that connect

them to adults who love and provide for them." V.C., supra, 163

N.J. at 219, 221. A third party may become a psychological

parent as a result of "the volitional choice of a legal parent

to cede a measure of parental authority to a third party[.]"

Id. at 227. Once a third party becomes a psychological parent,

he or she "steps into [the] shoes" of a natural parent, id. at

223-24 n.6, and determinations between the natural and

psychological parent are made pursuant to a best interests

analysis. Id. at 227-28.

Four essential requirements must be satisfied for one to

become a psychological parent:

[T]he legal parent must consent to and
foster the relationship between the third
party and the child; the third party must
have lived with the child; the third party
must perform parental functions for the
child to a significant degree; and most

11 A-0878-12T2
 important, a parent-child bond must be
forged.

[Id. at 223.]

These criteria are designed "to evaluate whether a third party

has become a 'psychological parent' to a child of a fit and

involved legal parent, and thus has standing to bring a custody

suit." P.B. v. T.H., 370 N.J. Super. 586, 595 (App. Div. 2004).

As the Supreme Court explained in V.C.,

[a]t the heart of the psychological parent
cases is a recognition that children have a
strong interest in maintaining the ties that
connect them to adults who love and provide
for them. That interest, for constitutional
as well as social purposes, lies in the
emotional bonds that develop between family
members as a result of shared daily life.
Smith v. Org. of Foster Families for Equal.
and Reform, 431 U.S. 816, 844, 97 S. Ct.
2094, 2109, 53 L. Ed. 2d 14, 35 (1977).
That point was emphasized in Lehr v.
Robertson, 463 U.S. 248, 261, 103 S. Ct.
2985, 2993, 77 L. Ed. 2 d 614, 626 (1983),
where the Supreme Court held that a
stepfather'[s] actual relationship with a
child was the determining factor when
considering the degree of protection that
the parent-child link must be afforded.

[V.C., supra, 163 N.J. at 221.]

Where custody is sought by a third party, the court must

conduct a two-step analysis. The first step requires the court

to determine whether the presumption in favor of the legal

parent is overcome by either a showing of "unfitness" or

"exceptional circumstances." Watkins, supra, 163 N.J. at 247,

12 A-0878-12T2
254. In Watkins, the Court emphasized that one of those grounds

must be proven before the trial court proceeds to the second

step of the analysis. Id. at 237 ("That presumption can be

rebutted by proof of gross misconduct, abandonment, unfitness,

or the existence of 'exceptional circumstances,' but never by a

simple application of the best interests test."). It is only

after that presumption has been rebutted that the court proceeds

to the determination whether awarding custody or other relief to

the third party would promote the best interests of the child.

Id. at 254; P.B., supra, 370 N.J. Super. at 594; see also

Moriarty, supra, 177 N.J. at 117 (noting that when the

presumption in favor of parental decision-making is overcome,

court should determine a visitation schedule based upon the

child's best interests).

With this background, we turn to the question of whether

both legal parents must consent, or whether the consent of only

one "fit and involved" legal parent is sufficient to support a

claim by a third party of psychological parenthood. From the

perspective of simple logic, it would be difficult to ignore the

"psychological harm" a child might suffer because he is deprived

of the care of a psychological parent simply because only one of

his "legal parents" consented to the relationship.

13 A-0878-12T2
 The clear policy underlying the Court's rulings in

Sorentino, Watkins, and V.C. is that "exceptional circumstances"

may require recognition of custodial or visitation rights of a

third party with respect to a child where the third party has

performed parental duties at home for the child, with the

consent of a legal parent, however expressed, for such a length

of time that a parent-child bond has developed, and terminating

that bond may cause serious psychological harm to the child.

Sorentino, supra, 72 N.J. at 131-32; Watkins, supra, 163 N.J. at

246-47; V.C., supra, 163 N.J. at 219, 223-28. It is fatuous to

suggest that this fundamental policy may be subverted, and that

a court may not even examine the issue at a plenary hearing,

where one of the child's legal parents colorably claims lack of

consent, in circumstances where the other legal parent has

consented. If we were to accept the arguments of K.A.F. and

F.D., a court would be powerless to avert harm to a child

through the severance of the child's parental bond with a third

party. That result is not supported by the Court's carefully

crafted policy governing such cases.

The Family Part judge suggested in his ruling that if both

fit and involved parents do not consent, a child might then in

the future have "three legal parents, four legal parents[,]"

depending on the romantic vagaries of the original legal

14 A-0878-12T2
parents. To this argument, we observe that the Court in V.C.

stated that establishing psychological parenthood is "not an

easy task[.]" V.C., supra, 163 N.J. at 230. Moreover, we have

confidence that our Family Part judges have the expertise and

discretion to appropriately address such issues as they arise.

Of some significance to the case before us, the Court in

Sorentino also expressly clarified that its prior holdings did

not establish that "the right of custody over a child by a

nonforsaking parent was necessarily inviolable as against a

showing of the probability of serious harm to the child if such

custody was awarded." Sorentino, supra, 72 N.J. at 132.

Plainly understood, this statement by the Court emphasizes that

the transcendent importance of preventing harm to a child weighs

more heavily in the balance then the fundamental custody rights

of a non-forsaking parent. It also supports the proposition

that where at least one "legal parent" of a child has, by his or

her actions, effectively consented to the creation of a

psychological parent relationship between that child and a

third-party, the third party has standing to pursue the claim.

Further, the Court in V.C. declared that it was explicitly

addressing

a specific set of circumstances involving
the volitional choice of a legal parent to
cede a measure of parental authority to a
third party; to allow that party to function

15 A-0878-12T2
 as a parent in the day-to-day life of the
child; and to foster the forging of a
parental bond between the third party and
the child. In such circumstances, the legal
parent has created a family with the third
party and the child, and has invited the
third party into the otherwise inviolable
realm of family privacy. By virtue of her
own actions, the legal parent's expectation
of autonomous privacy in her relationship
with her child is necessarily reduced from
that which would have been the case had she
never invited the third party into their
lives. Most important, where that
invitation and its consequences have altered
her child's life by essentially giving him
or her another parent, the legal parent's
options are constrained. It is the child's
best interest that is preeminent as it would
be if two legal parents were in a conflict
over custody and visitation.

[V.C., supra, 163 N.J. at 227.]

The Court's continual reference to "a" legal parent or "the"

legal parent in the singular strengthens our conclusion that the

consent of both legal parents is not required to create a

psychological parent relationship between their child and a

third party.

Nothing in the historical development of the psychological

parent policy, in the policy itself, or in the language of the

Court, therefore, suggests that both legal parents must consent

before a court may consider a claim of psychological parenthood

by a third party. Rather, it is sufficient if only one of the

legal custodial parents has consented to the parental role of

16 A-0878-12T2
the third party. In that circumstance, a legal custodial parent

has voluntarily created the relationship and thus has permitted

the third party to enter the zone of privacy between her and her

child.

By so holding, we do not discount the importance of F.D.'s

"consent", or lack thereof, in the case before us.

The requirement of cooperation by the legal
parent is critical because it places control
within his or her hands. That parent has
the absolute ability to maintain a zone of
autonomous privacy for herself and her
child. However, if she wishes to maintain
that zone of privacy she cannot invite a
third party to function as a parent to her
child and cannot cede over to that third
party parental authority the exercise of
which may create a profound bond with the
child.

[V.C., supra, 163 N.J. at 224.]

It may be used by a trial court, in an appropriate context, as

one factor among many in determining whether a third party has

established that he or she is a psychological parent of a child,

and, if so, whether the "best interests" of the child warrant

some form of custody or visitation. See Id. at 228 (enumerating

the factors under N.J.S.A. 9:2-4) and Todd v. Sheridan, 268 N.J.

Super. 387, 399 (App. Div. 1993) (a natural parent's status is

"one weight in the best interests balance"). We would expect,

however, that in most cases, the longer and more established the

17 A-0878-12T2
parental role of a third party has become, the lack of consent

by one legal parent would diminish in analytical significance.

Once the court has determined that the role of

psychological parent exists, the question of what relief is

warranted entails consideration of the best interests of the

child. In V.C. the Supreme Court held:

Visitation, however, will be the presumptive
rule, subject to the considerations set
forth in N.J.S.A. 9:2-4 as would be the case
if two natural parents were in conflict. As
we said in Beck v. Beck, 86 N.J. 480, 495
(1981), visitation rights are almost
"invariably" granted to the non-custodial
parent. Indeed, "[t]he denial of visitation
rights is such an extraordinary proscription
that it should be invoked only in those
exceptional cases where it clearly and
convincingly appears that the granting of
visitation will cause physical or emotional
harm to the children or where it is
demonstrated that the parent is unfit."
Barron v. Barron, 184 N.J. Super. 297, 303
(Ch. Div. 1982); see also, Wilke v. Culp,
196 N.J. Super. 487, 503 (App. Div. 1984)
(requiring convincing evidence of
exceptional circumstance to warrent denial
of visitation). Once the parent-child bond
is forged, the rights and duties of the
parties should be crafted to reflect that
reality.

[V.C., supra, 163 N.J. at 228-29.]

B.

We next turn to the question of whether the court should

have granted a plenary hearing. A court, when presented with

conflicting factual averments material to the issues before it,

18 A-0878-12T2
ordinarily may not resolve those issues without a plenary

hearing. While we respect the family court's special expertise,

a court may not make credibility determinations or resolve

genuine factual issues based on conflicting affidavits.

Conforti v. Guliadis, 245 N.J. Super. 561, 565-66 (App. Div.

1991), aff'd in part and modified in part on other grounds, 128

N.J. 318 (1992). When the evidence discloses genuine

material issues of fact, the failure to conduct a plenary

hearing to resolve those issues requires us to reverse and

remand for such a hearing. See, e.g., Fusco v. Fusco, 186 N.J.

Super. 321, 329 (App. Div. 1982); Tancredi v. Tancredi, 101 N.J.

Super. 259, 262 (App. Div. 1968), superseded by statute on other

grounds, N.J.S.A. 2A:17-56.23a, as recognized in Mallamo v.

Mallamo, 280 N.J. Super. 8, 13 (App. Div. 1995).

Moreover, a plenary hearing is particularly important when

the submissions show there is a genuine and substantial factual

dispute regarding the welfare of children. See Hand v. Hand,

391 N.J. Super. at 102, 105 (App. Div. 2007); and R. 5:8-6

(requiring the court to "set a hearing date" if it "finds that

the custody of children is a genuine and substantial issue").

Even where a party waives a plenary hearing, "the matter of

visitation is so important, especially during the formative

years of a child, that if a plenary hearing will better enable a

19 A-0878-12T2
court to fashion a plan of visitation more commensurate with a

child's welfare, nonetheless it should require it." Wagner v.

Wagner, 165 N.J. Super. 553, 555 (App. Div. 1979).

When an issue of child custody or parenting time is

presented and "[t]he trial court's order was based on its

evaluation of conflicting affidavits and adopt[ed] the

assertions of one party over the other without the benefit of a

plenary hearing," Mackowski v. Mackowski, 317 N.J. Super. 8, 11,

(App. Div. 1998), we have reversed and remanded for a hearing.

Id. at 14; see also Wilke v. Culp, 196 N.J. Super. 487, 501,

(App. Div. 1984) (finding that "[i]t is basic that a case should

not be decided merely on the basis of conflicting affidavits"),

certif. denied, 99 N.J. 243 (1985).

In the matter before us, the Family Part judge found that

the detailed certifications before him did not give rise to a

genuine issue of fact showing that F.D. had consented to D.M.'s

assumption of ongoing parental duties with respect to Arthur.

While the cause of action brought by D.M. is not "immune to the

summary judgment procedure," A.F. v. D.L.P., 339 N.J. Super.

312, 320 (App. Div. 2001), it is nonetheless clear that D.M.

averred sufficient facts that, if credited at a plenary hearing,

would establish her standing to pursue her complaint.

20 A-0878-12T2
 By way of example, D.M. has asserted that she and K.A.F.

lived in a familial setting with Arthur for over six years, from

the time he was eighteen months old, and that she performed many

normal parental duties during that time with the full consent

and encouragement of K.A.F. She further asserted that "[F.D.]

assented to" her assumption of parental duties for Arthur, and

"knew that [she] was parenting [Arthur]" and participating in

all "major decisions" pertaining to his welfare.

F.D. and K.A.F. dispute these averments of fact, thereby

giving rise to the necessity of a plenary hearing. In addition,

F.D.'s argument that she never explicitly consented to D.M.'s

parental role, and expressly objected to D.M.'s assumption of

any parental function, does not obviate the necessity for a

plenary hearing. As we held above, F.D.'s explicit consent is

unnecessary, and a court may find her assertion that she had

always expressly objected to D.M.'s participation in the

parenting of Arthur to be untrue.

A parent's "consent" to the creation of a psychological

parent bond need not be explicit. In V.C., our Supreme Court

explained,

Obviously, the notion of consent will have
different implications in different factual
settings. For example, where a legal parent
voluntarily absents herself physically or
emotionally from her child or is incapable
of performing her parental duties, those

21 A-0878-12T2
 circumstances may constitute consent to the
parental role of a third party who steps
into her shoes relative to the child. As in
all psychological parent cases, the outcome
in such a case will depend on the full
factual complex and the existence of the
other factors contained in the test.

[V.C., supra, 163 N.J. at 223 n.6.]

Moreover, the focus of the court's inquiry must always be the

intent and actions of a legal parent during the formation of the

disputed relationship and not the later expressions of a legal

parent about his or her desire to sever the relationship. "The

reason is that the ending of the relationship between the legal

parent and the third party does not end the bond that the legal

parent fostered and that actually developed between the child

and the psychological parent." Id. at 224-25.

In P.B., we extended the holding of V.C. to a neighbor who

asserted custody and visitation rights as the psychological

parent of a child, and explained that where the issue of

standing to assert the claim is contested, "as with any summary

judgment motion, a plenary hearing to resolve disputed factual

issues is necessary." P.B., supra, 370 N.J. Super. at 599.

Guided by these principles, we determine the Family Part

judge erred in concluding there were no genuine issues of

material fact as to F.D.'s consent to the creation of the

disputed relationship. F.D.'s certification that she had not

22 A-0878-12T2
consented, nor D.M.'s concession that F.D. was generally

"resistant" to her involvement in parenting Arthur, are not a

sufficient basis for granting summary judgment in this case.

III.

We reverse the order of the Family Part which dismissed

D.M.'s complaint and we remand for a plenary hearing on whether

D.M. is a psychological parent of Arthur and, if so, whether the

best interests of Arthur require accommodation through a sharing

of custody, visitation, or other relief. We also reverse the

order for counsel fees entered by the Family Part in favor of

K.A.F. and F.D. Counsel fees and costs, if any, will abide

the outcome of the plenary hearing. On remand, the matter

should be assigned to a different Family Part judge. See

Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005)

("[i]n an abundance of caution, we direct that this matter be

remanded to a different judge for the plenary hearing to avoid

the appearance of bias or prejudice based upon the judge's prior

involvement with the matter").

Reversed and remanded. We do not retain jurisdiction.

23 A-0878-12T2