Court Determines Burden of Proof When A Party Seeks To Bar A Parent From Succeeding To A Child’s Estate
Decided December 11, 2015
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-0878-14T2
2015 NJ Super LEXIS 204
Approved for publication
In this case of first impression, the Appellate Division interpreted N.J.S.A. 3B:5-14.1(b)(1), which provides that a parent who is deemed to have “abandoned” his or her child “by willfully forsaking” the child is barred from sharing in the child’s estate if the child dies intestate.
The court concluded that the party seeking to apply the statute to bar recovery must demonstrate, by a preponderance of the evidence, that the parent, through intentional conduct, manifested a settled purpose to permanently forego all parental duties and relinquish all parental claims to the child.
In this particular case, the Appellate Division acknowledged that the parent did not take the steps needed to resume parenting time with his child after a final restraining order prohibiting parenting time was issued near the time of the parties’ divorce. However, he did not intend to permanently forego all parental duties and claims: for example, the parent continued to pay child support, and was in contact with the child over social media several months prior to the child’s death. As a result, the parent did not sufficiently forego all duties.
The parties – Nees (the mother) and Fisher (the father) — were married in 1994 and had one child, Michael, born in 1995. The parties separated in 2001. Michael died at the age of fifteen on September 24, 2010.
The facts were relatively complex, but most of the following was undisputed:
- Nees obtained a Final Restraining Order (FRO) against Fisher after he attempted to remove Michael from school without first notifying her. Under the terms of the FRO, Fisher was permitted to have supervised parenting time with Michael. The FRO also ordered Fisher to submit to a risk assessment and to receive counseling. Fisher did not attend all of his supervised parenting time sessions with his son. He also did not appear for the risk assessment or counseling.
- Later, in January 2002, the court temporarily suspended Fisher’s parenting time pending his enrollment in an anger management program and completion of an assessment by the “Family Court Assessment Team.” Fisher did not comply.
- On March 7, 2002, the court entered a Final Judgment of Divorce (FJOD), which incorporated the terms of the parties’ agreement as to the terms of the dissolution. The FJOD granted sole custody of Michael to Nees, with Fisher’s parenting time remaining suspended until he complied with the January 2002 order.
- In May 2002, the trial court sent the parties a letter stating that the suspension of Fisher’s visitation with Michael continued in full force and effect.
- From January 2002 until Michael’s death, Fisher never had any legal visitation with his son. He did speak to Michael during telephone conversations in 2001 and 2002. Fisher also stated he would occasionally see Michael in public. One summer, he saw Michael on a beach, approached him, and began talking to his son. At that point, Nees appeared, reminded Fisher of the FRO, and told him she would call the police if he did not leave. Fisher complied.
- In 2006, Fisher moved to Florida. He fell behind in his child support obligations and, by 2010, was over $10,000 in arrears.
- In May 2010, Fisher filed a motion to decrease or terminate his child support obligation. Fisher stated that he was diagnosed with a serious health condition in February 2008 and could no longer work as a painter. Nees opposed the motion. On July 6, 2010, the trial judge granted Fisher’s motion and terminated his child support obligation
- Fisher stated that, about two months before Michael’s death, Fisher located his son on Facebook and sent him some messages. Michael responded to the messages. However, Fisher then discovered he “was blocked” from Michael’s account
- Fisher learned of his son’s death from a relative and returned to New Jersey to attend the funeral. Nees stated that she asked Fisher “to pay for half of the funeral costs and he would not do so.”
Michael died intestate and, with Fisher’s consent, Nees was appointed as the administratrix and administratrix ad prosequendum of Michael’s estate.
Because Michael had no spouse or children, his parents would each share equally in his intestate estate. N.J.S.A. 3B:5–4(b). However, a dispute arose under N.J.S.A. 3B:5-14.1, which became effective on July 1, 2009, and provides in pertinent part that:
b. A parent of a decedent shall lose all right to intestate succession in any part of the decedent’s estate . . . if:
(1) The parent refused to acknowledge the decedent or abandoned the decedent when the decedent was a minor by willfully forsaking the decedent, failing to care for and keep the control and custody of the decedent so that the decedent was exposed to physical or moral risk without proper and sufficient protection, or failing to care for and keep the control and custody of the decedent so that the decedent was in the care, custody and control of the State at the time of death . . . .
Under this statute, Nees filed a complaint seeking to bar Fisher from receiving a share of Michael’s estate. Fisher filed an answer to the complaint, denying that he abandoned his son.
The trial judge granted Nees’s request to bar Fisher from receiving a share of Michael’s intestate estate.
Fisher appealed. The Appellate Division began its analysis by explaining that whether Fisher “abandoned” Michael turned upon an interpretation of N.J.S.A. 3B:5-14.1(b)(1):
a parent may lose his or her right to intestate succession if the parent abandoned the decedent when he or she was a minor by: (1) “willfully forsaking the decedent”; (2) “failing to care for and keep the control and custody of the decedent so that the decedent was exposed to physical or moral risk without proper and sufficient protection”; or (3) “failing to care for and keep the control and custody of the decedent so that the decedent was in the care, custody and control of the State at the time of death . . . .”
Id. at *15. Accordingly, “a parent may abandon his or her child by taking any of the three specific actions set forth in the statute.” Id. at *16.
The appeals court then turned to whether Fischer “abandoned” Michael when he was a minor by “willfully forsaking him” within N.J.S.A. 3B:5-14.1(b)(1). The court determined that these terms could be interpreted under N.J.S.A. 9:6-1, which uses the same terms. After assessing that case law, the court continued:
we hold that, in order for a court to conclude that a parent has “abandoned” his or her child “by willfully forsaking” him or her under N.J.S.A. 3B:5-14.1(b)(1), the court must find that the parent, through his or her unambiguous and intentional conduct, has clearly manifested a settled purpose to permanently forego all parental duties and relinquish all parental claims to the child.
Id. at *23-24.
The court then considered the standard of proof to be applied under N.J.S.A. 3B:5-14.1(b)(1) when a party seeks to bar a parent from succeeding to a child’s estate, and noted that the statute was silent on this point. The court determined that that standard should be a preponderance of the evidence.
The Appellate Division then applied these standards to the case:
we conclude that the evidence presented to the trial court did not preponderate in favor of a finding that Fisher “abandoned” his son by “willfully forsaking him.” To be sure, Fisher did not take the actions necessary to enable him to have parenting time with Michael after Nees obtained the FRO against him. He did not submit to a risk assessment or counseling as ordered by the judge in the parties’ divorce action. As a result, Fisher did not have parenting time with Michael for the period between the court’s January 29, 2002 order suspending visitation and the date of Michael’s death in September 2010…. T]he issue is whether Fisher clearly manifested a settled purpose to permanently forego all parental duties and relinquish all parental claims to the child. That purpose was not demonstrated here.
Id. at *27. The court further noted various facts in favor of Fisher, including:
- Fisher paid child support for Michael throughout the child’s life. Although Fisher was approximately $10,000 in arrears at the time of the July 2010 order, he had still paid more than two-thirds of the total amount due.
- Fisher’s motion to reduce or terminate his child support obligation was not evidence of a settled purpose on his part to permanently forego all parental duties and claims to his child.
- Although Fisher did not have parenting time with Michael after 2002, he did see and speak to the child on one occasion (in violation of the FRO). Fisher also contacted his son on Facebook a few months before his death. He returned to New Jersey to attend the funeral. “These actions are not consistent with those of a parent whose ‘settled purpose’ was to permanently forego all parental duties and relinquish all parental claims to his child.” Id. at *27.
In the end, the court concluded that “Nees did not demonstrate by a preponderance of the evidence that Fisher ‘abandoned’ his son ‘by willfully forsaking’ him. Therefore, the exception to intestate succession set forth in N.J.S.A. 3B:5-14.1(b)(1) should not have been invoked in this case.” Id. at *31