In re Estate of Michael D. Fisher, II, 443 N.J. Super. 180 (App. Div. 2015). Under N.J.S.A. 3B:5-4(b), when a person dies with no spouse or children, the person’s parents each share equally in the decedent’s intestate estate. A parent loses the right to a share, however, if (among other things) the parent “abandoned the decedent when the decedent was a minor by willfully forsaking the decedent.” N.J.S.A. 3B:5-14.1(b)(1). Michael D. Fisher, II, died intestate at age fifteen. His parents, Michael D. Fisher and Justina Nees, had separated when the son was six years old. They were later divorced, with Nees being awarded custody of Michael.
Nees filed suit to block Fisher, Sr. from receiving a share of his son’s intestate estate. Nees contended that Fisher had abandoned his son by failing to take steps required by the court in the divorce that would have allowed him to have supervised parenting time with Michael, as well as by failing to pay child support and moving to Florida. The Chancery Division ruled for Nees. Fisher appealed, and the Appellate Division reversed in an opinion by Judge Haas.
“Whether Fisher ‘abandoned’ Michael turns upon an interpretation of N.J.S.A. 3B:5-14.1(b)(1).” Thus, de novo review was required.
Judge Haas first considered and rejected Fisher’s argument that language in N.J.S.A. 3B:5-14.1(b)(1) that came after the “willfully forsaking” phrase limited “abandonment” to situations in which the child was “exposed to physical or moral risk” or left “in the care, custody and control of the State at the time of death.” Citing the language and punctuation of the statute, as well as legislative history, Judge Haas demonstrated that “willfully forsaking” a child, by itself, is enough to constitute “abandonment” in this context.
The true issue was what constituted “abandon[ing]” or “willfully forsaking” Michael. The Chancery Division had relied solely on a dictionary definition of “willfully.” Judge Haas cited authority dating back to an opinion of Judge Learned Hand, to the effect that “a mature and developed jurisprudence [does] not make a fortress out of the dictionary.” Instead, Judge Haas found that precedents under N.J.S.A. 9:6-1, which construed these same terms in the context of family law, were a more appropriate resource. After reviewing those authorities, Judge Haas concluded that “abandonment by willfully forsaking” requires a finding that “the parent, through his or her unambiguous and intentional conduct, has clearly manifested a settled purpose to permanently forgo all parental duties and relinquish all parental claims to the child” (emphases by Judge Haas). Though Fisher argued for the imposition of a “clear and convincing” standard of proof on Nees on this issue, Judge Haas, after a careful analysis, determined that the normal “preponderance of the evidence” test would apply.
Ultimately, however, the panel ruled for Fisher. Though he had not taken required actions to obtain supervised parenting time, that did not represent an intentional choice to permanently forgo all contact with Michael. Though Fisher had been behind on child support, he had paid two-thirds of the amount due, thus showing once again that he did not intend to give up all rights permanently. Nor did a motion that Fisher filed to alter his child support obligation based on changed circumstances, such as Fisher’s health, support a finding of abandonment. Additionally, Fisher had spoken to Michael on one occasion, despite a restraining order forbidding him to do so. Fisher also contacted Michael on Facebook and traveled from Florida to New Jersey to attend Michael’s funeral. That too negated any intent to permanently abandon Michael.
Even the Chancery judge had found that Fisher may not have had the”specific intent or purpose to abandon his son. However, without that settled ‘purpose’ or ‘specific intent,’ there can be no abandonment or willful forsaking of a child.”