                      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                 NOT FOR PUBLICATION WITHOUT THE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.




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