How does NJ settle burial disputes between parents when a child passes away? Every parent’s worst nightmare is to have to bury their child. And a process like that, which seems like it could get no worse, actually can. In cases where parents dispute how to honor their deceased child, the endeavor becomes not only sad, but contentious. As the parents of the child, each should play a role and have a say, but sometimes an agreement cannot be reached. This is where the court system will be forced to make a decision. Read on to understand more about burial disputes between parents and the legal procedures used to settle them.
What Court has Jurisdiction over Burial Disputes between Parents?
To begin, we have to know what courts have jurisdiction over these issues. New Jersey’s Court system encompasses multiple divisions and levels, so this can be tricky. While probate courts usually take on matters of burial disputes and estate, family courts are meant to hear disputes between family members such as custody and divorce. For clarification on this issue, New Jersey’s appellate division directed, in a case we will discuss momentarily, that matters of contested funeral arrangements or dispositions of remains must be brought in probate court.
The New Jersey Cemetery Act
New Jersey’s Cemetery Act would appear to provide guidance on these cases. Codified at N.J.S.A. 45:27-22 is a provision which addressees who may control the funeral and disposition of a decedent’s remains. In the event that a person dies intestate (with no estate planning documents), the statute vests the right to control the funeral and disposition of remains in the following order of priority class: (1) spouse or domestic partner; (2) adult children; (3) surviving parents; (4) siblings; (5) next of kin; (6) written authorization of anyone else acting on behalf of the decedent.
Previous case law in New Jersey interpreted the potential right vested in the surviving parents as a joint exercise. Thus, preventing one parent from having a unilateral right to control the disposition. But this leaves the question of how to resolve a dispute when parents disagree about what procedures to take with their child’s remains unanswered.
Four Prong Test
In light of this, the New Jersey Appellate Court adopted a four-prong test, based on a decision from a previous Chancery case. This test evaluates the child’s former relationship with each parent. The Court stated that where parents of a deceased child dispute the funeral arrangements or disposition of remains, the following four factors should be considered in deciding who gets control: (1) which parent will be best able to make decisions aligning with their child’s expressed wishes, (2) who was closer to the child at their time of death, (3) who is more likely to consider the child’s religious beliefs in decision-making, and (4) who is most likely to be designated administrator of the child’s estate. When not all of the factors are applicable in a given scenario, the court may choose which are most controlling.
The Case: Freedman v Freedman
The case where this test was established is called: Freedman v. Freedman. There, a young man died unexpectedly at the age of 20, leaving behind no Will. At the time of his death, the young man and his father were essentially estranged. His mother decided to have the young man’s remains cremated. His father, meanwhile, did not even learn of his son’s passing until after the memorial services happened. His relationship with his son was on-and-off again, and the record indicated instances of conflict.
Still, the father brought action seeking half of the cremated remains, copies of all photographs of his son, and half of his son’s belongings. The mother refused to provide any of this to the father.
The trial court ruled that the mother would have control over the services and disposition of the young man, in light of her closer relationship with her son. The mother, was still ordered to notify the father of where the remains were disbursed so he could visit those locations, and to preserve the son’s photographs and cell phone data for review by the father.
The father appealed this decision, and brought the issue to the appellate court. This time, they cited the New Jersey Cemetery Act which states that when a child dies intestate, no one parent can have full control of their remains. However, since the parents couldn’t come to an agreement, they used a four-prong test to determine who should have the right to make the final decision about the son’s remains.
After applying the four-prong test, the appellate court first decided that the son had not expresses wishes pertaining to his memorial, was not religious, and no administrator was appointed to his estate. Therefore, the controlling factor was number two, which asks which parent had a closer relationship with the decedent.
The mother had a much closer relationship with her son, as he lived with her exclusively for the five years before his tragic death. The court noted how the father had zero parenting time in those years. The mother, therefore, was granted control over the son’s cremation and remains.
If you have any further questions about burial disputes in New Jersey, please contact Ward, Shindle & Hall.
