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

May A Grandparent Be Awarded Custody Of A Child They have Been Raising Since Birth?

For those of you who follow my, “New Jersey Divorce Lawyer Blog,” a constant theme when discussing child custody matters is a legal term of art known as, “the best interests of the child.”  Often throughout my career, I have advised clients that while they are certainly important to the judge, the focus first and foremost of any is to protect children.  Therefore, the child’s best interest comes before that of the parent.  In fact, a New Jersey Family Court can award custody to a “psychological parent” as opposed to the child’s natural parents, even if they are “fit.” 

Firstly, a psychological parent is a person with a close relationship to the child that basically assumes the role of a parent. In Latin this is known as In Loco Parentis. The psychological parent fulfills a child’s needs and provides the necessary support (ranging from financial to emotional support) so that the child’s best interests are met. Many times as well, a psychological parent will be granted custody of a child, even if the child’s natural parents are fit. That was the case in the recent Appellate Division decision of J.F. v. R.M. Let’s explore.

In the case, the child, Scott, was born in June 2007. At the time, his mother, Sue, was fifteen years old and his father, Robert, was seventeen. After Scott was born, the parties went to live with Sue’s grandmother, Joan. Additionally, after the child was born Robert contended that he was not aware that the boy was even his son and was not present in his life until 2011.

Joan had raised five of her own children throughout her life, in addition to five grandchildren who had been placed with her by the then Division of Youth and Family Services (now known as DCF). Sue was eight years old at the time the Division placed her with Joan. Although Sue lived in a foster home while she was pregnant with Scott, she returned home to Joan’s house a week before the child was born. Subsequently, she lived with Joan on and off for over three years, during which time Joan primarily took care of Scott. Joan had stated that she never left Sue alone with him because she witnessed her hitting him and feeding him in a way that made him ill. Once Sue moved out, the child remained living with Joan and lived there for his entire life.

In January 2011, Joan filed a complaint seeking custody of Scott, which was granted to her. She also sought to prove Robert’s paternity, and therefore his obligation to pay child support. The court ordered the paternity test, which established that Robert was indeed the child’s father. Robert was thereafter granted parenting time with his son and worked out a visitation schedule with Joan. By the time of the trial, the child was having overnight parenting time with his father.

In September 2013, Robert filed an application for full custody of the child. He stated that Joan was not allowing the child to spend holidays with him and had implemented limitations on his interaction with his son. Additionally, Robert described Joan’s house as cluttered and an overcrowded environment for his son to be living in. Of course, Joan opposed the application and contested all of the assertions Robert made.

In December 2013, the court ordered a custody investigation and an inspection of Joan’s home. By June 2014, the court determined that it was in the child’s best interest to remain living with Joan. The court stated that while Robert was a fit parent, Joan had demonstrated her psychological parent relationship with the child. Therefore, the court believed that she should retain residential custody as a non-parent. Robert appealed.

On appeal, Robert argued that the trial court erred in finding that Joan was a psychological parent for the child. He contended that the court should have applied the parental fitness test as opposed to the best interests of the child test and awarded him residential custody. However, the Appellate Division affirmed the findings of the lower court.

The Appellate Division stated that the trial court correctly applied the best interest of the child test in allowing Joan to retain residential custody of Scott. The court stated that Joan had clearly established her role as a psychological parent to the child. It looked to the following four elements to support its decision:

(1)  Robert, as the child’s biological father, consented to and fostered Joan’s formation and establishment of a parent-like relationship with the child

(2)  Joan and the child lived together for the child’s entire life

(3)  Joan assumed the role of the child’s mother by taking significant responsibility for his care, education and development without expecting Robert to financially contribute

(4)  Joan was in a parental role for a length of time sufficient to have created a dependent relationship parental in nature with the child

Ultimately, the takeaway from the case is that even if a child’s natural parents are fit, a psychological parent may still be granted residential custody if it is in the child’s best interest. For more information on this red-hot issue, please do not hesitate to contact my office today.