Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

In a New Jersey Child Custody Case, May My Gay Partner Be Deemed As The Psychological Parent Of My Child?

In the modern world non-traditional families are becoming more and more common.  As American culture continues to progress, the traditional notions of what a family is has changed drastically with the years. As an experienced child custody attorney, I have kept a close eye on how New Jersey Family Courts’ view family values affect an incredible amount of people. As a lawyer who focuses only on family law, it is of utmost important that people know their rights in the ever-changing world of family law. V.C. v. M.J.B, established how a partner may become a psychological parent, and under what circumstances that will allow them to seek custody and parenting time rights.

In V.C. v. M.J.B., the New Jersey Supreme Court determined the applicable legal standard for a third party’s claim to joint custody and visitation of a former partner’s biological children. While this case was in the context of a lesbian couple, the standard applies to all people who willing undertake the duties of parent to a child not related by blood or adoption.

V.C and M.J.B met in 1992 and started dating on July 4, 1993. Soon thereafter on July 9, 1993, M.J.B went to go see a fertility doctor to begin an artificial insemination procedure. She had been thinking about and planning artificial insemination for over ten years, and contended that she made the final decision to become pregnant alone, long before she met V.C. However, according to V.C. the couple discussed children early in their relationship. Still, V.C. did not realize that M.J.B. made the decision to have a baby by artificial insemination until September 1993. M.J.B.’s first doctor’s records indicate that she was single and wanted children.

M.J.B. underwent several insemination procedures between November 1993 and February 1994, and V.C. was in attendance for at least two of them. V.C. moved in with M.J.B. in December 1993. On February 7, 1994, M.J.B found out she was pregnant. The couple eventually found out that M.J.B was having twins. Both M.J.B. and V.C. attended prenatal and Lamaze classes in preparation for the birth of the twins. The couple then moved into a bigger apartment in anticipation of the children. At trial V.C. would contend that during this time the couple jointly decided on the children’s names. Conversely, even though M.J.B admitted that she consulted V.C., she contended that ultimately the final decision regarding names was hers alone.

M.J.B gave birth to the twins on September 29, 1994. Not only did V.C. take M.J.B to the hospital, but she was also present in the delivery room at the birth of the twins. While at the hospital, the nurses and staff treated V.C. as if she were a mother. The nurses gave one child to M.J.B to hold, and the other to V.C. immediately after the birth, and took photos of the four of them together. Right after the birth, M.J.B took a three month maternity leave and V.C. took a three week vacation.

The couple opened joint bank accounts together for their household expenses. They also executed wills, powers of attorney, and named each other as the beneficiary for their respective life insurance policies. A few years later the parties also opened savings accounts for their children. V.C. was the named custodian for one account, and M.J.B. was custodian for the other. The couple also agreed to have the children call M.J.B “Mommy” and V.C. “Meema.” At trial, M.J.B admitted that she referred to V.C. as a mother of the children. Furthermore, M.J.B, both publicly and privately, supported the idea that during the twenty-three months after the children were born, the couple and the twins functioned as a family unit. M.J.B gave wrote cards and letters to V.C. the referred to her as the twin’s mother, and stated that the four of them were a family. The children also gave cards to V.C. that referred to her as their mother. M.J.B encouraged a relationship between V.C. and the children in the interest of creating a “happy cohesive environment for the children.” While M.J.B admitted that she sometimes thought of the four of them as a family when the couple was together, she still sometimes considered the twins “theirs,” and other times she considered them only as “hers”.

M.J.B. conceded that both women cared for the children, but maintained that the substantive decisions regarding their lives were made by her. Conversely, V.C. argued that she was equally involved in all the decision making. M.J.B also acknowledged that V.C. “assumed substantial responsibility” for the children, yet still maintained that V.C. was simply a helper and not a co-parent. V.C. argued the opposite and alleged that she acted as a co-parent to the children and had equal parenting responsibilities. Not only did M.J.B list V.C. as the “other mother” on the twin’s daycare and pediatrician forms, she also gave V.C. medical power of attorney over them. Numerous witnesses testified at trial that they viewed V.C. as a co-parent equally involved in the children’s lives.

Eventually the couple purchased a house together in February 1995. Later on that year, V.C. asked M.J.B to marry her. In July 1995, the parties held a commitment ceremony where they were “married”. Shortly after, in August 1996, M.J.B ended the relationship. The women took turns living in the house with the children until November 1996. V.C. moved out in December 1996. M.J.B allowed V.C to visit the children until May 1997. V.C. spent almost every other weekend with the children, and even contributed money toward the household expenses. However, relations deteriorated and eventually M.J.B did not want the children to see V.C. anymore. V.C eventually filed a complaint for joint legal custody. The complaint moved from trial court to appeal, and eventually found itself reviewed by the New Jersey Supreme Court.

The Supreme Court started its opinion by stating that while there were no laws that directly addressed whether a former unmarried domestic partner had the right to seek custody and visitation of a former partners biological children, the Legislature had expressed the view that in general children should be allowed continued contact with parents after the relationship between them ends. The language of New Jersey Statute 9:2-13(f) represents a legislative intent that parents other than natural or adoptive parents might qualify as parents based on the specific circumstances. Even though the right of a legal parent to the care and custody of his or her own child is fundamental, it is not absolute. The same right may be infringed upon by the state if the parent is unfit or endangers the health or safety of the child. Even without a showing of unfitness of a parent, the existence of exceptional circumstances serves as a recognized alternative basis for a third party to seek custody and visitation of another person’s child.

The category of exceptional circumstances includes the psychological parent cases where a third party has stepped in to assume the role of the legal parent who has been unable or unwilling to take care of the obligations and responsibilities of parenthood. In order to establish that one has become a psychological parent to the child of a fit and responsible legal parent, the legal parent must consent to and approve of the relationship between the third party and the child. Also, the third party must have lived with the child, performed significant parental functions for the child, and a parent-child bond must be formed. A psychological parent-child relationship voluntarily created by the legal parent may not be terminated by the legal parent after the adults end their relationship. Furthermore, participation in the decision to have a child is not necessary in order to become a psychological parent to the child.

Financial contributions may be considered, but are not dispositive that the third party has assumed the obligations of parenthood. An assumption of a parental role is determined by the nature, quality, and extent of the functions exercised by the third party, and the response of the child to the care. The most important factor in determining whether a psychological parent-child relationship has been established is the existence of a parent-child bond. The existence and extent of the parent-child bond will require expert testimony. When a legal parent voluntarily choses to given parental authority to a third party and allows the same party in the day-to-day parenting life of the child, and fosters the parental bond between the third party and the child, the legal parent has created a family with the third party and the child. Where such a situation alters the child’s life by giving the child another parent, the legal parent’s interests are put to the side and the child’s best interest reigns supreme.

Once a third party is determined to be a psychological parent to a child, that parent stands with the legal parent, and custody and visitation issues are to be determined on a best interest standard. The Supreme Court found that because V.C. had not been involved in the decision-making for the two children for almost four years, so suddenly giving her decision-making duties would be unduly disruptive in the children’s lives. Thus the Court did not order joint legal custody. However, the Court did find that continued regular visitation between V.C. and the children was in the best interest of the children because V.C. was their psychological parent. For more information on this issue, please contact my office today.