New Jersey Divorce and Family Lawyer Blog
While the U.S. Supreme Court has declared that same sex marriage is now legal all across the country, the states are still addressing with the newly accepted concept of a family in other contexts as
well. This is demonstrated in the recent published opinion of the Appellate Division in Moreland v. Parks, A-4754-16, which was decided on August 17, 2018. In this matter, Valerie Benning and I’Asia Moreland were a same sex couple. Ms. Benning was living with Ms. Moreland and her two children, along with Ms. Benning’s godson. After leaving a Disney on Ice show at the Sun Bank Arts Center in Trenton, the couple witnessed a pick-up truck hit Ms. Moreland’s two year old daughter, I’Maya, and kill her. Ms. Moreland and Ms. Benning were not married. Ms. Benning and Ms. Moreland filed a civil suit, which included a count by Ms. Benning for bystander negligent infliction of emotional distress. The trial court dismissed Ms. Benning’s claim for bystander negligent infliction of emotional distress on the basis that she did not present enough evidence of an “intimate familial relationship” with the the child to bring a claim under Portee v. Jaffee, 84 N.J. 88 (1980).
Ms. Benning was not married to Ms. Moreland, who was I’Maya’s mother. Ms. Benning was not biologically related to I’Maya, nor did she have custodial rights. She began dating Ms. Moreland in 2007 and began to live with Ms. Moreland and her children in 2008. Within a few months, both of Ms. Moreland’s children began referring to Ms. Benning as “Mom”. I’Maya was killed in 2009. Ms. Benning and Ms. Moreland became engaged in 2011 and they married in 2014. A psychologist who evaluated Ms. Moreland’s son, I’Zhir, noted that he considered Ms. Benning and her godson members of his family, and that he felt safest when with his two mothers and his grandmother. Two year old I’Maya was holding Ms. Benning’s hand in January, 2009 to cross the street when she was struck by the truck and killed. Ms. Benning’s godson’s legs and ankles were broken in the accident as well. In the ambulance after the incident, Ms. Benning was able to describe to the paramedics I’Maya’s medical history. I’Zhir told hospital staff that he had two mothers. Ms. Benning was so distraught when told of I’Maya’s death that the hospital had to put her in restraints. Benning helped pay for I’Maya’s funeral and borrowed money from her family to help pay for it.
The trial court referred to Ms. Benning and Ms. Moreland as lovers, but found that the case of Portee v. Jaffee requires a showing of an intimate family relationship, not merely an intimate relationship. The trial judge rejected the contention that Ms. Benning was a psychological parent to I’Maya. The trial judge noted that in the case of Dunphy v. Gregor, 136 N.J. 99 (1994), a decedent’s fiance was permitted to bring a claim for bystander negligent infliction of emotional distress. However, the trial judge distinguished this matter because Ms. Moreland and Ms. Benning had not been engaged at the time of the I’Maya’s death, and he found no evidence of a permanent bond between them or one that was “deep, lasting and genuinely intimate.”