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Who Decides Child Funeral/Death Arrangements if Parents are Divorced?

crying child

The loss of a child is an utterly unfathomable one to those who have never lived it. Anguish is only heightened when there are disputes between the decedent’s divorced parents about funeral and death arrangements.

As New Jersey family law and probate attorneys, we can explain that such matters must be resolved by the Probate Court, rather than the Family Court. That said, prior child custody and parenting time arrangements can be factored into the decisions made.

One such case, Freedman v. Freedman, was recently weighed by the New Jersey Appellate Division and examined in the New Jersey Law Journal. The child, a college student, died suddenly at the age of 20. The father was never informed of the child’s death, while the mother proceeded with cremation and memorial services. The parties later went to Court seeking resolution of their dispute over possession of the cremated remains and personal items belonging to the child. Ultimately, the Court ruled in favor of the mother, noting the child had lived with her at the time of death and the father had not exercised parenting time for five years prior to the death. The Appellate Division affirmed.

In its examination, the appellate panel pointed out that disputes over cremation remains are guided by N.J.S.A. 45:27-1 to -41, the New Jersey Cemetery Act. Those laws dictate that if the person who died didn’t appoint someone to control their funeral and disposition of their remains, the right to make those decisions goes in this order:

  • Surviving spouse.
  • Majority of decedent’s surviving children.
  • Surviving parent or parents.
  • Majority of decedent’s brothers/sister.
  • Other next of kin, according to the closeness of relations.

Notably, there’s no stipulation in the statute for what to do if two members of the same priority class in this list (i.e., two parents) disagree about what to do. However, there is some case law guidance.

In the 2017 case of In re Estate of Travers, a New Jersey Chancery Court ruled in a dispute between divorced parents over their son’s remains that four factors should be weighed:

  • Which person is more likely to follow the wishes and desires of the decedent?
  • Which had established a closer relationship to the decedent, and thus is in a better place to know what the decedent’s desires/expectations were?
  • Which person is more likely to follow the religious beliefs and/or cultural customs of the decedent in funeral and death arrangements?
  • Which person is more likely to be designated as the administrator of decedent’s estate and will be most apt to act in the best interests of the estate (particularly with respect to costs)?

In the Freedman case, the New Jersey Appellate Court effectively issued a modified Travers test to the facts, which involved essentially the same questions, except asking “which parent?” instead of “which person?”

The Appellate Court ruled that courts should balance these factors to varying weighted scales depending on which are most pertinent to the facts at hand. For example, some children may be devout in their faith, while others far less so. A qualitative analysis can help courts give proper weight to each factor in making a final determination.

Contact our New Jersey family law and probate attorneys at (732) 810-0034 or visit us online.

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