Tale of Horror – Parents Who Litigate Over the Ashes of Their Deceased Child
Jan 10, 2023 | Written by: | Share
In the recently published NJ Appellate Division decision of Freedman v. Freedman, a divorced couple’s child died of an overdose while away at college in Colorado.
Upon learning of his son’s death days after it occurred, the father also learned that the child had been cremated and that the memorial service had already taken place. The father was omitted from the process and, thereafter, engaged in a years’ long battle over the son’s remains. The parents’ inability to see the irony of their animus and the role it may have played in their son’s demise is tragic.
I often serve in the role of a court-appointed parent coordinator and work with parents in high-conflict cases. It is from that perspective, in part, that I write this article, and that I express frustration that more preventative action was not taken, to the extent that it could have provided for a different outcome.
Unfortunately, there are certain divorced parents who are simply incapable of communicating, cooperating and/or co-parenting, which are the cornerstones of any custodial determination for a child. Often these parents are embroiled in years’ long litigation, and often, referred to multiple experts such as therapists, parent coordinators, and so on. Perhaps it is because the literature is so grim that we are not readily aware of the statistics, but researchers have determined that divorce increases the likelihood of suicide for adult children of divorce by 14%.
The publication of this decision is necessary to examine, although difficult in subject matter, as it provides “guidance for future cases involving similar disputes in intestate estates. The proceedings contesting the funeral arrangements or disposition of remains should be brought by complaint in the Probate Part, rather than by application in the Family Part. The probate judge should consider appointing a pendente lite administrator who shall investigate the facts and attempt to resolve the issues. If a resolution is not reached, the probate court shall apply the test we have adopted and determine which parent or next of kin of equal standing shall control the funeral arrangements and disposition of remains, which should not involve protracted hearings relating to the history of the parties over multiple years leading up to the death. All unresolved aspects of the decedent's estate, including disposition of the decedent's assets and personal effects, should likewise be brought, and decided in the Probate Part.”
Where parents of a deceased child dispute the funeral arrangements or disposition of remains, the court shall consider the following factors in selecting the person in control under N.J.S.A. 45:27-22:
(1) Which parent is more likely to abide by the decedent's expressed preferences, if any;
(2) Which parent had a closer relationship with the decedent and is in a better position to deduce the decedent's preferences and expectations upon death;
(3) Which parent is more likely to adhere to the religious beliefs and cultural practices of the decedent, to the extent that such beliefs and practices pertain to funeral arrangements or the disposal of remains and reflect the decedent's preferences; and
(4) Which parent will likely be designated administrator of the estate and act in the best interests of the estate relating to the funeral arrangements and disposition of the decedent's remains.
The trial court must undertake a qualitative analysis of each factor, assign appropriate weight, and balance the factors.
Despite the lack of relationship between the mother and father, and the son and the father, I am surprised that the Appellate Division did not address the mother’s unilateral choice not to involve the father nor inform him upon learning of the death of the child. While the grief suffered is unimaginable, these parents had no problem casting aspersions at one another through their litigation and, therefore, there should likely have been some culpability, even if limited to the mother’s failure to inform the father. Perhaps that is why her requests for counsel fees was denied, but as same is not addressed it is conjecture.
Although the frequency of this issue arising in one’s life is hopefully rare, the guidance provided by the Appellate Division is necessary and helpful. The decision to publish the opinion speaks to the importance of same and warrants our attention, even if the subject matter is difficult to get through. Do not let this happen to your family; you can often control these outcomes, even if it may not feel like it. Communicating with your attorneys to discuss the issues and to take preventative measures can be extremely worthwhile.
Diana N. Fredericks, Esq., devotes her practice solely to family law matters. She is a Certified Matrimonial Law Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters in 2015, 2016, 2017, 2018, 2019, 2020 and 2021, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015. Contact Ms. Fredericks for a consultation at 908-735-5161 or via email.
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