Appeals Court Defines When a Parent has “Abandoned” a Child for Purposes of Intestate Succession

Under the New Jersey laws of intestacy, if a decedent dies without a will  and without a spouse or children, his or her parents will share equally in his/her intestate estate. N.J.S.A. 3B:5-4(b). However, effective July 1, 2009, a New Jersey statute prevents surviving parents from sharing in a child’s intestate estate if 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.

N.J.S.A. 3B:5-14.1 (emphasis supplied). In a case of first impression, the New Jersey Superior Court, Appellate Division considered whether a father’s actions should bar him from receiving a share of his deceased son’s intestate estate. The Appellate Division reversed the Chancery Court decision and held that the father had not abandoned his son so as to be barred from a share of the estate.

The decedent, Michael D. Fisher, II (“Michael”), was six years old when his parents separated. According to Michael’s mother, the separation was sparked by Michael’s father’s arrest for “peering into the window of a dwelling,” which resulted in an indictment for fourth-degree criminal trespass. A month after the separation, Michael’s father attempted to remove Michael from school without notice to his mother; this resulted in his mother obtaining a Final Restraining Order (“FRO”) against the father. The FRO restricted the father to supervised visitation with Michael, and ordered the father to submit to risk assessment and domestic violence counseling. The father did not attend all of these supervised visits, and did not appear for risk assessment or counseling. Accordingly, in 2002, the court temporarily suspended the father’s parenting time, and ordered that the father enroll in an anger management program and undergo a family court assessment. When a final Judgment of Divorce was entered later in 2002, the father’s parenting time remained suspended pending completion with the prior order.  From then until Michael’s death in 2010, the father had no “legal visitation” with Michael. Michael and his father had “some” telephone conversations in 2001 and 2002; one summer, the father saw Michael on the beach and spoke to him until Michael’s mother reminded him of the FRO and threatened to call the police; in 2010, the father located Michael on Facebook and sent him messages, but was “blocked” from Michael’s Facebook account.

In 2006, the father moved to Florida. In May 2010, after falling behind on his child support obligations, the father filed a motion to decrease or terminate his child support obligation because a serious health condition prevented him from working. That motion was granted, although he remained responsible for the child support arrears, the balance of which he continued to pay down until Michael’s death.

Michael died in 2010, at the age of fifteen, allegedly as a result of medical malpractice. The father learned of Michael’s death from a relative, and he returned to New Jersey to attend his son’s funeral. According to Michael’s mother, the father refused her request to pay for half of Michael’s funeral costs.

In 2014, the mother filed a complaint seeking to bar the father from sharing in the proceeds of Michael’s estate pursuant to N.J.S.A. 3B:5-14.1(b), on the basis that he had abandoned Michael after the divorce. The trial court granted the mother’s request.

The trial court referred to the dictionary definition of “willful,” which defined it as “voluntary.” The judge found that the father had “abandoned his son by willfully forsaking him.” He found that, although his visitation rights had been limited by court order, by disregarding those court orders for evaluations, the father had “abandoned what relationship remained.” He also found that the father had failed to comply with his child support obligations, which remained in arrears at Michael’s death. However, the trial court noted that “the court does not question that [the father] cared for his son or mean to imply that it was his purpose or specific intent to abandon him.” Nevertheless, the trial judge barred the father from inheriting from Michael, finding that the father’s actions were “unequivocally intentional rather than accidental or involuntary.”

On appeal, the Appellate Division reversed the Chancery Court ruling. It found that the trial judge had erred by focusing on the word “willfully” and defining that word through a dictionary, because “dictionary definitions are not necessarily a reliable guide to the meaning of words of … statutes of this breadth and significance.” Instead, it should have construed the term based on case law that likely guided the legislature in enacting the statute. In case law interpreting the child abandonment statute N.J.S.A. 9:6-1, the terms of which are nearly identical to the statute in issue, “abandonment” was interpreted to mean “any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child.” “Forsaking” was interpreted to mean “permanent giving up or relinquishment of the child.”  Relying on these definitions, the court held 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.”

It found that the “preponderance of the evidence” standard, rather than the “clear and convincing” standard, would be applied in cases arising under the statute.

Given the above, the Appellate Division concluded that the mother had not demonstrated, by a preponderance of the evidence, that the father “abandoned” his son “by willfully forsaking him.” It found that the father had not acted with a “settled purpose to permanently forego all of his parental duties or relinquish all parental claims.” He paid child support throughout the child’s life. There was evidence that, at the time of the divorce, he had rejected the wife’s offer to give up his parental rights in exchange for her waiver of child support. The Appellate Division also found noteworthy that the father had seen and spoken to Michael once after 2002, that he had made contact with Michael on Facebook, and that he returned to New Jersey for Michael’s 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.”

The Appellate Division decision has been approved for publication.

The case is annexed here – In the Matter of the Estate of Michael D. Fisher, II

UPDATED ON JUNE 2, 2016: On April 1, 2016, the New Jersey Supreme Court declined to review that decision, leaving the Appellate Division decision as the last word on the issue. My blog post on the Supreme Court decision can be found here.

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