In last week’s article, we mentioned that one of the biggest mistakes we see being made during divorces in Morris County is our clients taking divorce advice from a friend who divorced 20 years ago. One of the reasons this is a big mistake is because New Jersey family law is constantly changing as our society’s understanding of what it means to be a family also continues to change and evolve.
A great example of such a change to New Jersey family law is related to the issue of psychological parentage, and how these laws should be applied in cases involving multi-parent families and families with complex family structures. In legal terms, a “psychological parent” is used to describe an adult who forms a parent-child relationship with a child who is not their biological or adopted child. There are many different ways for such a situation to occur, and a great example of this would be when two adults enter into a relationship, and one of the adults brings a child into this new relationship. Should that child form a parental bond with this other adult (a bond which is legally determined by a variety of factors discussed in the sections below), this adult could be considered a “psychological parent” of the child, and given the ability to seek all of the same child custody, visitation, and even child support rights and responsibilities to which any other biological parent would legally be entitled.
So while there are laws in place which can grant non-biological parents the same kinds of custodial rights as a biological parent, until very recently, it was somewhat unclear how these laws would apply to tri-parent and multi-parent families. Thanks to the landmark New Jersey case of D.G. and S.H. v. K.S., litigated by Jacobs Berger partner Sarah J. Jacobs, the New Jersey family court system now has a much more modern understanding of how the rights of a psychological parent are determined and applied in tri-parent family situations, and how they are applied to the types of child custody disputes that can arise in any family.
Tri-Parenting and Child Custody Attorneys Madison, NJ
While by no means exclusive to the LGBTQ community, a common way for tri-parent and multi-parent family structures to form is when gay and lesbian couples wish to grow their family by becoming parents, but wish to do so by raising a child along with a third biological parent, rather than the couple adopting a child by themselves.
In the precedent-setting case of D.G. and S.H. v. K.S. mentioned above, Sarah Jacobs was asked to litigate on behalf of a married gay couple who had reached an agreement with a mutual friend to conceive and then jointly raise a child as a tri-parent family. As part of this arrangement, mother K.S. was artificially inseminated using the sperm of D.G. While this issue only became apparent several years later, without a legalized agreement in place, S.H.’s parental rights were tenuous at best since he was not a biological or legal parent of the child.
Shortly after the child was born, the couple moved in with the mother for the summer in order to begin raising the child and providing for the child’s many needs. While the mother needed to continue working during the summer, since S.H. worked as a teacher he could stay at home during the summer with the child until S.H. needed to return to work at the start of the next school year.
Following that summer the couple moved out of the mother’s home to a nearby rental home (still maintaining their home in New York City), sharing visitation time and financial responsibilities with the mother, and continued to play a key role in the child’s life in all of the ways any parent would. They were caretakers of the child, assumed many of the financial costs associated with raising the child, and formed close, parent-child bonds with the child while also maintaining a positive and healthy co-parenting relationship with the mother.
After roughly 4 years of successful tri-parenting, the mother announced to the couple that she intended to marry a man in California, and move with the child to California to start a new life with her soon-to-be-husband. Understandably, D.G. and S.H. were adamantly opposed to K.S. taking their child with her to California, and attempted to come to a mutual agreement with K.S. regarding custody and visitation rights without involving the New Jersey family court system.
When it became clear to them that no such agreement could be reached, D.G. and S.H. retained the counsel of Sarah Jacobs, asking her to to help them establish formal child custody and visitation agreements, secure S.H. psychological parentage and legal parentage rights, and finally contest the intended out-of-state relocation by the mother with their child.
Psychological Parentage and Child Custody for Non-Biological Parents, Morris County Child Custody Lawyers
As previously mentioned, if an adult is legally determined to be a psychological parent of a child, they are able to petition for all of the same rights as any other biological parent when it comes to child custody, visitation and even child support. To clarify, becoming a psychological parent does not inherently grant an individual rights to custody, visitation and support, rather it allows them to then seek those parental rights through legal action once psychological parentage is granted.
In order for a non-biological or non-adoptive parent to legally become a psychological parent, the courts will need to find the following four factors to be true:
- The legal parent must consent to, and foster, a relationship between their child and the non-biological parent.
- The non-biological parent must have lived with the child.
- The non-biological parent must have performed parental duties in regards to the child.
- The court must find that a parent-child bond has been formed.
Of course, many of these factors are highly subjective. Is paying for a child’s braces a “parental duty”? Is living with the child for two months sufficient time to form a parent-child bond? Is one year sufficient? Two years? What exactly is a parent-child bond, and how do you prove that one has or has not been created?
When it comes to these types of subjective considerations, it becomes more important than ever for any parent facing such a situation to speak with, and ideally retain, experienced and effective legal counsel in order to best present and substantiate their position on the matter to the courts.
In the case of D.G. and S.H. v. K.S., Sarah Jacobs was able to show to the Court that S.H.’s parent-child relationship was intended, consented to by the other parties, and had formed a significant parental bond with the child.
Finding all of these things to be true, the ruling court not only granted S.H. psychological parentage, but the court went so far as to even grant him independent legal and physical custody of the child. This was a monumental finding by the courts, as it essentially added a “third parent” to this family. While S.H. may have been able to pursue custody and visitation in the event that he and D.G. were to divorce, securing independent custody solidified S.H.’s parental rights outside of his marriage to D.G.
Furthermore, as part of this same 2015 ruling, the court denied the mother’s relocation request, established a joint custody and visitation arrangement between the two households, and found that no child support was necessary between the parties given the child would spend equal amounts of time in each household.
Contact Our Morristown Multi-Parent Family Attorneys Today
By securing psychological parentage for S.H., and more importantly independent custody as a part of this tri-parent dispute, Sarah Jacobs has helped to continue to advance the rights of multi-parent and LGBTQ parents across New Jersey, and advance our law’s understanding of exactly what it means to be a parent and ultimately, a family.
At Jacobs Berger, our attorneys have extensive experience working with families to find modern, creative and constructive solutions to family law issues of all kinds in towns across New Jersey and Morris County including Madison, Morristown, Randolph, Dover, Denville, Florham Park, East Hanover, Morris Plains and more.
Our unique approach to divorce and family law is centered around protecting not only the interests of our clients, but the interests of the family as a whole. This means not wasting money on expensive litigation when negotiation is possible, and not creating inter-family strife when the same results can be achieved through a more communicative and constructive manner. And while this will always be our primary goal when resolving family law matters, we also understand that situations do arise in which no amount of negotiations will work, and our clients can rest assured that we have the experience, knowledge and preparation necessary to securing their needs and rights within a court of law.
To speak with our legal team today in a strategic planning session regarding any kind of family law matter you may be facing, including divorce, a child custody dispute, a post-divorce modification or enforcement matter, or even how we can help you to secure your rights as an independent parent or a psychological parent, please contact us online, or through our Morristown, NJ office at (973) 710-4366.
