The loss of a child is unimaginable for those who have not experienced it. Anguish only intensifies when there are disputes between the deceased child's divorced parents regarding funeral and burial arrangements.

As family law attorneys, we can clarify that such matters must be resolved by the Probate Court instead of the Family Court. However, prior child custody and parenting time arrangements can be considered in the decisions made.

A case in recent years, Freedman v. Freedman, was reviewed by the New Jersey Appellate Division and discussed in the New Jersey Law Journal. The case involved a college student who died suddenly at the age of 20. The father was not informed of the child’s death, while the mother went ahead with the cremation and memorial services. One can only imagine the father's devastation when he heard the news. Subsequently, the parties went to court to resolve their dispute over the possession of the cremated remains and personal items belonging to the child. Ultimately, the court ruled in favor of the mother, noting that the child had been living with her at the time of death and that the father had not exercised parenting time for five years prior to the child's passing. The Appellate Division upheld the ruling.

The appellate panel noted that disputes regarding cremation remains are governed by N.J.S.A. 45:27-1 to -41, which is part of the New Jersey Cemetery Act. According to these laws, if the deceased individual did not designate someone to oversee their funeral and the handling of their remains, the authority to make those decisions follows this specific order:

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

It is important to note that the statute does not specify what actions to take if two members of the same priority class (for example, both parents) disagree on a decision. However, there is some guidance from case law.

In the 2017 case, In re Estate of Travers, the New Jersey Chancery Court addressed a dispute between divorced parents regarding their son's remains. The court determined that four factors should be considered in such cases:

• Which person is more likely to follow the wishes and desires of the decedent?
• Which had established a closer relationship with 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 the decedent’s estate and will be most apt to act in the best interests of the estate (particularly concerning costs)?

In the Freedman case, the New Jersey Appellate Court modified the Travers test to focus specifically on the question of “Which parent?” instead of “Which person?” The court ruled that judges should assess the relevant factors using varying weights based on their significance to the particular situation. For instance, some children may be very devout in their faith, while others may be less so. A qualitative analysis can assist courts in determining the appropriate weight for each factor when making a final decision.

In a situation such as this, where the children's parents cannot agree, and where emotions are running high, it can be particularly helpful to have someone step in to negotiate a quick resolution on your behalf.