We don’t typically post about DYFS (now DCPP) or similar type cases on this blog as we usually focus on divorce and related issues. That said, for fun, I was reading the new cases that were decided yesterday and came upon a case that I found compelling, both because it indicated some systemic problems in custody cases and because it had some real strong language about parental rights – that while stating the obvious, perhaps, did so in a powerful way and in a way that needed to be reiterated. 

The case I’m talking about is  C.D., A.P. and D.D. v. N.D.M.  and A.L.   which was an unreported (non-precedential) decision released by the Appellate Division on January 8, 2013.  In that case, the aunt and grandparents received temporary custody of her niece and a best interest evaluation, to be completed within 90 days, was ordered.  The parties ultimately agreed to a joint expert to do the evaluation,  That evaluation, which by court order was to be completed in 90 days, took more than a year to complete.

SYSTEMIC ISSUE #1:  All custody and best interest evaluations are supposed to take 90 days or so.  That almost never happens.  Rather, it is not unusual for it to take 6 months or longer to get a report.  If it is a joint or court appointed expert, the party who doesn’t like the report has the right to get their own report so add another several months to the process.  As in this case, where the mother’s custody with her own child hinged upon this report, the prejudice cannot be quantified.

The report was dated July 24, 2010.  On January 3, 2011, the court ordered that the mother get the child back by April 30, 2011. 

SYSTEMIC ISSUE #2:  While not explained, under these circumstances, why did it take from the issuance of the report in July until January to get an order to restore custody to the natural mother vs. third parties?  Too often, adjudication of important issue get delayed breathing life to the old adage "justice delayed is justice denied."

Based upon an apparent failure to comply with the Order and other maneuverings, the child was not ultimately returned until August 2011. 

SYSTEMIC ISSUE #3:  Judges do not always enforce their own orders.  We have blogged about this problem in the past. 

Getting to the custody/constitutional issues, on appeal, the aunt argued that she was the child’s psychological parent.  Under the law, once a finding of psychological parenthood is made "the court [must] decide whether awarding custody to the third party would promote the best interests of the child."  In a strong rebuke to that assertion, the Appellate Division held:

During the time that Alice lived with plaintiffs she undoubtedly strengthened her bond with these family members. However, Mother did not consent to plaintiffs stepping into the role of a psychological parent. An aunt or grandparent often
assists a parent to care for a child, both financially and in many other ways

Extended family living in one household is common. Parents do not cede their rights as a parent by taking advantage of the assistance of relatives. Mother was never determined to be an unfit parent or to have abused or neglected Alice in any way. Although plaintiffs indicated when they began the litigation that they were seeking KLG, in fact, they did not pursue that cause of action. To obtain KLG over the objection of a parent requires a stringent test including a lack of parental fitness.
N.J.S.A. 3B:12A-6(d). (Emphasis added)

In further reference to the psychological parent claim as well as in response to plaintiff’s claim that the child should not have been returned to the mother without a hearing, the Appellate Division held:

… Nevertheless, Alice was "temporarily" removed from her mother to her aunt’s physical custody without a plenary hearing and the removal lasted far longer than the judge anticipated. This extended placement, however, does not convert
Aunt to a psychological parent.
Generally, if as a result of an investigation by the child protective services agency, there is a finding of abuse or neglect and a child is therefore removed and placed with a relative in foster care, that relative does
not become a psychological parent, nor is a plenary hearing required to return the child home to the parent. See N.J.S.A. 9:6-8.54.

Parenthetically, the plaintiffs, who were in a far greater financial position than the mother, appealed an award of counsel fees to her.  That award was affirmed.  While not stated, this reminds me of the following quote from Wilde v. Wilde a reported Appellate Division decision on grandparent visitation (which not coincidentally, I was involved in), as follows:

It must be recognized, of course, that a domestic relations proceeding in and of itself can constitute state intervention that is so disruptive of the parent-child relationship that the constitutional right of a parent to make certain basic determinations for the child’s welfare is implicated.   If a single parent who is struggling to raise a child is faced with visitation demands from a third party, the attorney’s fees alone might destroy her hopes and plans for the child’s future.   (Emphasis added).

While no bad motive was necessary ascribed to the plaintiffs here, their failure to comply with court orders was deemed bad faith and their greater financial abilities were noted. 

 While the tragedy of what happened below cannot be undone, it seems that the Appellate judges sent a strong and clear message here. SImply put, helping out a family member by getting or taking temporary custody does not mean that the child is yours.


Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com