# Watkins v. Nelson > Supreme Court of New Jersey · April 6, 2000 · 163 N.J. 235 URL: https://www.frixlaw.com/law-library/cases/9755010 ## Case - **Full name:** Lawrence Watkins, Jr., Plaintiff-Appellant, v. Beverly Nelson and Kevin M. Nelson, Defendants-Respondents - **Court:** Supreme Court of New Jersey - **Decided:** April 6, 2000 - **Citations:** 163 N.J. 235; 748 A.2d 558; 2000 N.J. LEXIS 361 - **Precedential status:** Published - **Opinion:** Dissent by O'Hern - **Judges:** Coleman, Stein - **Cited by:** 89 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9755010 ## How later opinions describe it (automated extraction) - explaining in the context of a custody dispute that "when a third party, such as a stepparent, establishes psychological parentage with the child, the third party stands in the shoes of a natural parent." - stating that “[a]bsent exceptional circumstances the natural parent is entitled to custody of the child even though the third party may be able to offer more amenities” - holding that a custody dispute between third party and parent first requires application of the parental termination standard or a finding of “exceptional circumstances” - holding in custody dispute between non-custodial father and parents of deceased custodial mother, non-custodial parent awarded custody unless harm shown ## Opinion text *259 O’HERN, J., dissenting. The death of a parent must be one of the hardest things that a child can ever endure. Most of us have been spared that suffering. We can only derive a sense of that loss from works of literature such as James Agee’s autobiographical novel, A Death in the Family. I fear that the Court may compound the tragedy of such a loss by creating a rule of law that will only add to the child’s suffering in many circumstances. In essence, the Court holds that when a custodial parent dies, absent a showing that a surviving parent is unfit, a child will almost certainly be removed from his or her home within a very short time. Expedited hearings will be required even before the process of grieving will be ended. Ante at 257-58, 748 A.2d at 570. I believe that so rigid a rule will be harmful to children and dissent from the rule of law adopted by the Court. A premise of the Court’s ruling is that constitutional law gives a biological father, perhaps long separated from the child’s mother, an almost automatic right to remove the child from the home where the child may long have received nurture and comfort. Realistically, the Court holds that a child must be taken from her home and placed in the custody of a parent whom she may have rarely seen unless (1) she can show that her father is so unfit a person that his parental rights would have to be curtailed under “an application of the parental termination standard,” ante at 258, 748 A.2d at 568, 1 or (2) some person other than her deceased mother was her psychological parent. This latter circumstance is the only example given for what the Court describes as “exceptional circumstances.” Ante at 254, 748 A.2d at 568. Because this second prong will never arise in the case of the death of a single *260 custodial mother (by definition, she is the child’s parent both biological and psychological), the child of a single mother will have to be immediately removed from her home setting unless she can establish the first prong of the Court’s test. To force a child to make such a case against a father, with whom she might wish to maintain a strained but evolving relationship, only adds to her suffering. The requirement of “serious physical or psychological harm or a substantial likelihood of such harm,” ante at 248, 748 A.2d at 565, is another way of stating the standard for termination of parental rights, In re Guardianship of J.C., 129 N.J. 1 , 608 A.2d 1312 (1992), not the appropriate standard for an interim award of custody of a bereaved child. I respect the constitutional rights of a parent, but I also respect the human rights of a child. Our law has tended to view the law as a process designed to meet human needs. See Procanik by Procanik v. Cilio, 97 N.J. 339, 353 , 478 A.2d 755 (1984) (observing that the Court’s decision to allow recovery in a wrongful birth case was predicated on the “needs of the living”). I believe that the focus of the inquiry when a custodial parent dies should be on the needs of the child as well as the rights of the non-custodial parent. In this respect we may draw guidance from our long experience in developing a standard by which to determine whether parental rights should be terminated. We found that the concept of “best interests” of the child, then contained in N.J.S.A. 30:4C-15(c) and -20, was too vague and too abstract to provide guidance. We developed a four-part test that focused on the needs of a child, specifically the need to be free from harm and to a permanent plan that will ensure that the child will remain free from harm. New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-11 , 512 A.2d 438 (1986). In In re Adoption of Children by G.P.B., Jr., 161 N.J. 396 , 736 A.2d 1277 (1999), this Court adapted a similar test applicable in the context of contested adoption cases to determine if the physical or mental health of the child would be harmed by continuing the relationship with a biological parent. Finally, in J.C., supra, Justice Handler ex *261 plained how the breaking of bonds with a custodial figure may cause a child serious psychological or emotional harm that would justify termination of parental rights. In this case the statutory standard under N.J.S.A. 9:2-5 requires a court, when a custodial parent dies, to “make such judgments and orders, from time to time, as the circumstances of the case and the benefit of the children shall require.” I agree that that standard is too vague to govern the disposition of the important interests involved. In this setting, however, we deal with a much lesser intrusion on a parent’s rights than termination of parental rights. Because the intrusion is lesser, the justification for intrusion may be less. The standard for governing the custody of a child whose custodial parent has died should depend on the degree of harm that a child will suffer if removed from the home surroundings and family that has until then nurtured the child. In his dissenting opinion, that I join, Justice Stein has convincingly demonstrated that constitutional requirements do not dictate a standard so inconsiderate of a child’s needs as that which the Court adopts. Of what kind of harm, then, should we speak? At a conference of the New Jersey Association for Children, a keynote speaker once observed: “Every child deserves a childhood.” At first hearing, the expression sounds trite, but it contains a profound truth. Childhood means a combination of things but surely, for most of us, it means the warmth of love and caring from the adults in our lives, our childhood friends and that unique place that is home. (It is said that no other language has a word that conveys the same meaning as does, in our language, the word “home.”) Justice Handler has explained that “[i]n applying these statutory standards [governing the custody of children], we are cognizant of New Jersey’s strong public policy in favor of permanency. In all our guardianship and adoption cases, the child’s need for permanency and stability emerges as a central factor.” In re Guardianship of K.H.O., 161 N.J. 337, 357 , 736 A.2d 1246 (1999) (citing J.C., supra, 129 N.J. at 26 , 608 A.2d 1312 ). And in A.W., supra, 103 *262 N.J. at 610 , 512 A. 2d 438 , the Court said: “If one thing is clear, it is that the child deeply needs association with a nurturing adult. Since it seems generally agreed that permanence in itself is an important part of that nurture, a court must carefully weigh that aspect of the child’s life.” What I know or have learned of child development convinces me that the death of a custodial parent requires a balanced consideration of the needs of the child and the right of the non-custodial parent. A parent who is not legally unfit in the Title 9 sense 2 may yet not be able to help the child cope with the enormity of the death of a parent. A twelve-year-old daughter who has been witness to years of unrest between her mother and a separated father may not be able to bear the twin losses of her mother and her childhood home with all of its memories of love, laughter, and companionship. At the time the transfer of custody was sought in this ease, the father was himself still a young man. He had not completed his high school education. Realistically, he was not yet ready to be a parent. Yes, he did have the support of his wonderful family, including his parents and a sister. Thus, the choice for the court was really between two sets of equally loving grandparents and extended family members. To speak of the constitutional rights of a father as though the child had no right to the continued presence of those blood relatives who had nurtured her from birth belies the significance of the child’s interest. In a recent book, 3 the author explains how on the death of his parents, which he described as like “being run over by a truck,” he and his brother were together able to overcome their grief. He served as parent and companion to his younger brother. *263 In this ease, the child of twelve days was so young that she would not have experienced the same grief. But the rule of law governing the death of a custodial parent must not be so inflexible as to deny a child the right to be free from the unwanted additional suffering of removal from a loving home where stepbrothers, step-sisters or a grandparent may best fill the void from the loss of a parent. The courts below did not have in place the rule of law that should govern a change of custody when a custodial parent dies. I would fashion a standard that would focus on whether the child would suffer physical, psychological or emotional harm from the loss of the continued relationship with those who had until then filled the child’s life and home with love. That standard would serve as well, to guide the Court through its evaluation of the rights of grandparents under N.J.S.A. 9:2-7.1 to maintain a relationship with grandchildren both when there is a death of a custodial parent or other change in relationship. The inflexible standard adopted by the Court today puts in question the constitutionality of the Grandparents’ Visitation Act because it elevates the parent’s right of autonomy above the child’s right to be free from the harm occasioned by the loss of love and nurture of those within the child’s life. In a reference to the current international debate about the return to his father of a child whose mother died en route to this country, a school psychologist writes: The assumption that [such] a child ... would best be able to “grieve and heal” with his surviving parent is not borne out by the experience of many young people (letter, Feb. 5). As a New York school psychologist who has worked with immigrant children and adolescents over the last 20 years, I believe that the extent to which a child can recover from the traumatic loss of a parent largely depends upon the surviving parent’s capacity for emotional contact. For many of my students, the expression of anger is not tolerated at home since it is viewed as a sign of disrespect; other parents may discourage talking about the dead relative, resulting in young children’s swallowing their pain and anger. [Such a] case should not simply be decided on the "ties that bind parent and child” but in a way that respects his emotional needs. [Toby L. Boritz, Mourning His Mother, N.Y. Times, Feb. 10, 2000, at A.30.] *264 I favor a rule of law that respects the emotional needs of a child who has lost a custodial parent as well as the presumptive right of a separated parent to the custody of a child. The circumstances of the case will determine whether the harm to the child caused by a change in the custodial setting should outweigh that presumption. I would remand this case to the Family Part for further proceedings in accordance with such a standard. Unexplained is the paradox that if this standard is met, the child will have lost both a mother and a father since her father (whom she may regard as imperfect but not unfit) must be removed from her life. Also unexplained is how this standard that requires that a parent shall have harmed a child, could have been applied in a case like this when the parent had had virtually no contact with the child. N.J.S.A. 9:6-8.21, for example, defines the abuse and neglect of a child that will justify protective custody arrangements. Dave Eggers, A Heartbreaking Work of Staggering Genius (2000). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9755010. Public record. Not legal advice.