Who Gets to Decide What to Do with a Child’s Remains When the Parents are Divorced?

divorced parents deciding what to do with their deceased child's remains

In a recent published case, the Appellate Division dealt with the sad circumstances addressing the disposition of the cremation remains and personal effects of a child, who passed away while attending college. 

In the case of Freedman v. Freedman, the parties were divorced in 2007.  Their child unexpectantly died in 2021 at the young age of twenty.  When the child passed away, the mother unilaterally had the child’s body cremated and never informed the father of the child’s death, which prevented the father from participating in the decision and attending the memorial service.  The parties filed applications with the Court to resolve, among other issues, the dispute regarding the possession of the cremation remains and the child’s personal effects.  The Appellate Division held that the mother had sole control over the child’s cremation remains and provided guidance on the proper procedure going forward regarding similar issues.

The Appellate Division stated that issues regarding the child’s cremation remains, and personal effects should be addressed in Probate Part and not in the Family Part.  Further, the Appellate Division stated that the disposition of the “cremation remains is governed by the New Jersey Cemetery Act, 2003 (Cemetery Act), N.J.S.A. 45:27-1 to -41, and its interpretive case law.”  If there was no will appointing a person to control the funeral and disposition of the remains, under N.J.S.A. 45:27-22(a), it states that “the right to control the funeral and disposition of the human remains shall be in the following order of priority class, unless other directions have been given by a court of competent jurisdiction:

  1. The surviving spouse of the decedent or the surviving civil union or domestic partner.
  2. A majority of the surviving adult children of the decedent.
  3. The surviving parent or parents of the decedent.
  4. A majority of the brothers and sisters of the decedent.
  5. Other next of kin of the decedent according to the degree of consanguinity.
  6. If there are no known living relatives, a cemetery may rely on the written authorization of any other person acting on behalf of the decedent.”   

If both parents are surviving, the decision-making authority presumptively is to be jointly exercised.  However, what happens when parents cannot agree and dispute on the disposition of the child’s remains, as they have done in the Freedman case? 

The Appellate Division stated that the Court shall consider the following factors in selecting the person in control:

  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. 

In the Freedman case, the facts favored the mother because, prior to the child’s death, the child lived exclusively with the mother.  Furthermore, the father did not exercise parenting time with the child for approximately five years leading up to the child’s death.  Ultimately, the Appellate Division agreed that Mother had the closer relationship with the child and is more likely to determine the child’s preferences and expectations.          

It is certainly a difficult time for parents, especially when they lose a child.  However, if they are unable to come to an agreement regarding the child after their death, the Freedman case provides the roadmap to addressing the resolution of the dispute.  If you are dealing with the unfortunate death of a child and are in dispute with your spouse regarding the disposition of the remains of your child, contact the experienced team at Lyons & Associates, P.C. to learn more about the jurisdiction laws in New Jersey. 

Contact us online or call us today at (908) 575-9777 to schedule a free consultation.