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Appellate Division says Portee claims not limited to sanctioned relationships, familial status

Recognizing the “evolving social and moral forces” driving the definition of familial relationships, the Appellate Division remanded a matter for a determination of whether the non-biological parent in a same-sex couple is part of the class of litigants entitled to bring a negligent infliction of emotional distress (NIED) claim. The New Jersey State Bar Association (NJSBA) filed an amicus curaie brief in support of reversing the trial court's decision to dismiss the non-biological mom's claim in Moreland v. Parks, Docket No. A-4754-16T4. Former NJSBA President Thomas H. Prol argued the matter on behalf of the association. Immediate Past President Robert B. Hille signed the brief.

At issue is the relationship between I'Asia Moreland and Valerie Benning, a same-sex couple who lived together with Moreland's two biological children and Benning's godson. As the family was crossing a street at an intersection, a fire truck and pickup truck collided in front of them, striking the family and propelling the two-year-old daughter 65 feet south of the intersection. Benning was holding the two-year-old's hand. The child died. Benning filed a bystander NIED claim, which was dismissed by the trial judge, who found that Benning did not present sufficient evidence that she had an “intimate familial relationship” with the child to satisfy the requirements under Portee v. Jaffee, 84 N.J. 88 (1980).

The NJSBA asked the court to “affirmatively clarify that the familial relationship requirement underpinning a Portee claim should not be limited to only those individuals having a narrowly defined marital, legal custodial or biological relationship to an injured person or decedent, as is well established in existing Supreme Court precedence.”

The appellants argued, and the Appellate Division agreed, that all facts viewed in favor of the non-moving party provided sufficient genuine issues of material fact to present this question to the jury. At the time of the accident, Benning and Moreland had lived together for 17 months; they shared the responsibility of caring for the three young children; the child called Benning “mom” or “mommy” a few weeks after they began their relationship; and a psychological evaluation revealed the older child thinks of both women as part of the family and feels safest when he is with them.

Focusing exclusively on the second of four elements of a Portee claim, the Appellate Division explained the evolving definition of familial relationships in support of its decision that a rational jury could find Benning to be a de facto parent:

No one can reasonably question that the social and legal concept of 'family' has significantly evolved since the Court decided Portee in 1980. Thirty-eight years ago, gay, lesbian and transgender people were socially shunned and legally unprotected against invidious discrimination in employment, housing, and places of public accommodation under our State's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. The notion of same-sex couples and their children constituting a 'familial relationship' worthy of legal recognition was considered by a significant number of our fellow citizens as socially and morally repugnant and legally absurd.

The overwhelming number of our fellow citizens now unequivocally reject this shameful, morally untenable bigotry; our laws, both legislatively and through judicial decisions, now recognize and protect the rights of LGBTQ people to equal dignity and treatment under the law.