May A Third Party Be Ordered As A Psychological Parent And Receive Parenting Time?

Yes. Pursuant to New Jersey child custody laws, our lawyers understand judges of the Family Part of the Superior Court of New Jersey may find that an individual who has been primarily responsible for raising a child may be deemed to be the “psychological parent” even if they are not the child’s biological parent.

The case of D.G. v. K.S., addressed issues of custody, removal, and support between three friends to conceive and jointly raise a child in a tri-parenting arrangement. In 2009 K.S. gave birth to a daughter, O.S.H. The biological father of O.S.H. is D.G. The third party, S.H., is D.G.’s same-sex spouse, who bonded with and became a psychological parent of O.S.H. After a long and arduous trial, the Superior Court of New Jersey, Family Part, Ocean County, awarded joint legal and joint residential custody of O.S.H. to all three parties, and denied the application of K.S. to remove and relocate the child to a different state.

Starting in the fall of 2006, K.S., D.G. and S.H. discussed having a child together and creating a tri-parenting arrangement. They believed that they were in a new never before seen relationship that they coined a “tri-parenting relationship.” It was collectively decided that they would use D.G.’s sperm, mostly because K.S. and D.G. had been friends for a long time. They used K.S.’s egg and decided to give the child S.H.’s surname. In preparation for the child, the parties all took baby classes, started a registry, and began preparing for the child to have “two homes,” by buying doubles of baby items.

O.S.H. was born in 2009. The parties spent most of the summer after the child’s birth in Point Pleasant Beach together at K.S.’s house, co-parenting the child. During that time, K.S. was working at a local restaurant that her parents owned, and went back to work shortly after the birth. D.G. ran a business at the Jersey Shore, and S.H., who worked as a high school teacher in New York City on summer break, was responsible for a substantial portion of the parenting duties. At the end of the Summer of 2009, D.G. and S.H. decided to rent a house of their own in Point Pleasant Beach.

After the summer of 2009, the parenting time of each parent fluctuated. During the summers, D.G and S.H. took over a significant portion of the parenting time due to K.S.’s work at her parent’s restaurant. K.S. also owned a home in Costa Rica, where she took the child every year for varying amounts of time during the winter. After Superstorm Sandy in October 2012, the couple lost their summer rental home due to damage from the storm. Going forward, the couple began to enjoy weekend parenting time with the child in New York City. During this early period, the parties discussed the physical practicalities of a parenting schedule, but no written agreement regarding legal rights was executed at this time. The child’s life was exactly as they had planned, the parties were able to effectively co-parent together. On the belief that their “tri-parenting relationship” was unique and wanting to share their story with others, they began to solicit news outlets. Ultimately, “Marie Claire” magazine wrote an in-depth article, which was admitted into evidence.

While the early period of this new relationship was going as planned, this peace did not last. The beginning of the turmoil grew out of K.S.’s wish to relocate with O.S.H. to California. After, K.S. and the child returned from a trip to Costa Rica in March of 2013, D.G. and S.H. learned that she had fallen in love with her neighbor in Costa Rica, A.A., who lived in California. A.A. had shared custody of his children with his ex-wife in California which prevented him from moving to New Jersey. In June 2012, K.S. approached D.G. and S.H. and discussed her thoughts and plan to move to California. The meeting ended with D.G. and S.H. requesting a written parenting-time proposal from K.S.

Finally, in December 2013, K.S. presented a written plan to the couple. After numerous discussions concerning proposed plan, in March 2014, the couple formally expressed their objection to K.S.’s relocation. This effectively unraveled the parties’ original “tri-parenting” agreement. D.G. and S.H. sought a court-ordered parenting time and custody determination, and ultimately filed a complaint. After the filing of the complaint, K.S. took the child to California without the permission of D.G. and S.H. This resulted in the couple filing an order to show cause on June 13, 2014. Subsequently, the court transferred sole custody of the child to D.G. However, before the return date of the order to show cause, a consent order was issued regarding interim parenting time that gave legal custody of the child to D.G. and K.S. That consent order did not address residential custody.

The couple went to the Superior Court of Ocean County for relief, and S.H. filed a motion seeking an order declaring him to be a psychological parent of O.S.H. This request was supported by D.G., the child’s biological father. Furthermore, at the very ever of trial, even K.S., the biological mother, admitted that S.H. was, indeed, a psychological parent of the child. The Superior Court of New Jersey, Ocean County, agreed.

In the 2000 case of

In the 2000 case of Watkins v. Nelson, the New Jersey Supreme Court ruled that in a custody dispute between a child’s biological parent and a third party, custody should be awarded to the biological parent unless the third party could show evidence of parental gross misconduct, abandonment, unfitness, or “exceptional circumstances.” Then in V.C. v. M.J.B., the Supreme Court held there must be a finding of “exceptional circumstances” in order to conclude that a third party has become a psychological parent of a child. Where the third party has lived for substantial period with the legal parent and the child, the Court requires the satisfaction of four elements: (1) that the biological parent consented to and fostered the third party’s formation and establishment of a parent-like relationship with the child; (2) that the third party and the child lived together in the same household; (3) that the third party assumed the obligation of parenthood by taking significant responsibility for the child’s care, education and development, including contributing toward the child’s support, without expectation of financial compensation; and (4) that the third party has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship that is parental in nature.

Once a third party has been determined to be a psychological parent to a child, he or she stands in equality with the legal parent. Custody ad parenting-time issues between a parent and the psychological parent are to be determined on a best-interests-of-the-child standard, giving deference to the factors enumerated in New Jersey Statute 9:2-4. The court found that the four-element test set forth in V.C. had been met.

First D.G. and S.H. were married. The couple and K.S. mutually agreed to conceiving and raising a child together. D.G. had consented to, and fostered, the parent-like relationship between S.H. and the child. Furthermore, K.S. herself consented to S.H. being involved in the child’s life by agreeing to the “tri-parent relationship,” before the birth of the child, and for a significant period after the birth of O.S.H. It was clear from the evidentiary record that both biological parents consented to and encouraged the parenting of O.S.H. by S.H., even going as far as giving the child S.H.’s surname. It was undisputed that this relationship was fostered from birth and that both were involved with the raising and nurturing O.S.H since her birth.

Moreover, it was clear that D.G. and S.H. had significant, recurring parenting time with the child in K.S.’s household, as well as their own home. It was also clear that S.H. had assumed the obligation of parenthood by taking significant responsibility for the child’s care, education, and development, including contributing towards the child’s support, without the expectation of compensation. The testimony and evidence revealed that S.H. often prepared the child for school and physically took her to school and that he attended to the child’s general hygiene needs, including bathing, dressing, brushing her hair and teeth, and taking her to dental visits. He was also deeply involved in the child’s early education, completing her application for admission to preschool, taking her there in the mornings, and picking her up in the afternoons.

Finally, the court found that S.H. had been in a parental role for over six years, a length of time sufficient to have established a bonded, dependent relationship with O.S.H., that was parental in nature. For all the afore-mentioned reasons the court awarded joint legal and joint residential custody of O.S.H to all three parties, and denies the application of K.S. to remove and relocate the child to a different state because the loving bond and relationship the child will be able to maintain and experience in both households in New Jersey was in the best interest of the child.