K.A.F. v. D.L.M. ( 2014 )


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  •                       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    NOT FOR PUBLICATION WITHOUT THE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