An In Depth Look and Rights and Circumstances.
The following article was written by Callagy Law’s Legal Team, and will focus on many common questions and concerns surrounding new developments, legal matters, and other procedures within the practice area of Family Law. Our mission is to answer any questions and give knowledge to many different aspects of these matters.
Contested custody and parenting time disputes between divorcing parents is, unfortunately, a common occurrence in litigated matrimonial matters. Most people have some familiarity, either directly or indirectly, with the general notion that courts will decide custody and parenting time conflicts between parents based upon a determination of what is in the child’s best interests. However, how much consideration is given to potential custody and parenting time disputes between a parent and a non-parent, third party? Probably very little, yet given the ever-evolving nature of “family,” which may include unmarried cohabitants, domestic partners, step-parents, extended family members such grandparents, aunts, uncles, etc., custody and parenting time disputes between a legal parent and a third party is a very real possibility which may become a more frequent occurrence. Fortunately, through developing case law our courts have established legal principles that have addressed such a situation, balancing intrinsic parental rights while remaining resolute in protecting the best interests of minor children.
A Parent’s Fundamental Right
A legal parent has a right to the care and custody of his or her minor child.[i] These rights are so basic and fundamental to the parent-child relationship that they are constitutionally protected, providing a parent with the right to raise their child without government interference.[ii] However, such rights are not absolute. Parental rights are routinely confined and abrogated in “issues of custody, visitation, child support and myriad other aspects of domestic relations.”[iii] The recognition that such parental rights are not absolute reflects the long-standing principal that courts in family law matters are charged with parens patriae authority, the right of the state to protect a child’s wellbeing. Such authority permits a court to issue an order as to the care and custody of a child based upon a showing that the order is in the child’s best interests.[iv]
A custody dispute between legal parents is a rather straightforward, at least in terms of the legal process. At the outset, a presumption exists that both parents are equally entitled to the care and custody of their minor child.[v] As neither legal parent has a greater right to the care and custody of their minor child, the focus of such a dispute is fixed upon the best interests of the child.[vi] When determining what custodial arrangement will be in the minor child’s best interests, as between the child’s legal parents, the court is required to make factual findings considering the fourteen (14) factors enumerated in N.J.S.A. 9:2-4. While such litigation is more often than not fraught with acrimony to the great emotional and financial costs of the litigants and the minor child, the basic legal framework is uncomplicated. The “best interests of the child” standard is applied to custody disputes between legal parents, with both parents standing on equal-footing and a statutory structure to guide attorneys and the judiciary toward a resolution.
Rights of A Third-Party Against A Legal Parent
However, when a non-parent seeks custody of a minor child over the objection of a legal parent, the same legal standards do not apply, at least not initially. As a general principle, third parties have no legal rights to the care and custody of a minor child. For example, through prior case law it has been clearly established that grandparents, siblings or stepparents have no “inherent” rights to custody of the child.[vii]
In the context of a custody dispute between a legal parent and a third party, a presumption of custody exists in favor of the legal parent.[viii] However, that presumption can be overcome. Importantly, the “best interest standard” applicable in custody disputes between legal parents, cannot be utilized to rebut the presumption in favor of a legal parent in a custody dispute with a third party, non-parent.[ix] In other words, a non-parent cannot simply assert that custody should be granted to the non-parent over the legal parent based upon the “best interests of the child” standard. In short, “strangers may not compete with fit parents on the basis that they might be a‘ better’ parent.[x] In recognition of the fundamental right of the legal parent to the care and custody or his or her child, a higher standard is required before a third party can assert a right to custody or parenting time with a minor child.
The standard that controls a custody dispute between a third-party and a legal parent involves a two-step analysis. The first step requires application of the “parental termination” standard or a finding of Aexceptional circumstances.@[xi]
The “parental termination” standard requires a showing by clear and convincing evidence of parental abandonment, unfitness or gross misconduct.[xii] The Aexceptional circumstances@ category contemplates the intervention of the court in the exercise of its parens patriae power to protect a child.[xiii] The “exceptional circumstances” inquiry is the proverbial “catchall” category which permits a court to act in circumstances which do not rise to the level of abandonment, unfitness or gross misconduct (the “parental termination” standard). However, as it was noted in Watkins v. Nelson, the “exceptional circumstances” inquiry is not the same as the best interests inquiry, stating
A significant difference between the child’s best interests test and the parental termination or “exceptional circumstances” standard is that the former does not always require proof of harm to the child. In contrast, the latter always requires proof of serious physical or psychological harm or a substantial likelihood of such harm.[xiv]
In fact, as the focus of the “exceptional circumstances” standard is solely on the possibility of harm to the child, “exceptional circumstances” does not even require a showing that the legal parent is unfit.[xv] Even if a legal parent is “deemed to be a fit parent,” a showing of “exceptional circumstances” can rebut the presumption in favor of a legal parent in a custody dispute with a third party.[xvi] It is the probability of serious psychological harm to child, not the parent’s unfitness that may deprive a parent of custody.[xvii]
“Exceptional Circumstances”: The Psychological Parent
Within the category of Aexceptional circumstances@ is the concept known as Apsychological parent.@ The idea of a “psychological parent” grew out of our Supreme Court decision Sorentino v. Family & Children’s Soc. Of Elizabeth which recognized that there is a “serious potential for psychological harm to young children if they are removed from a foster home where they had lived and been nurtured during their early years.[xviii] It is that “possibility of serious psychological harm to the child…which transcends all other considerations.”[xix]
A “psychological parent” is the legal term utilized when a third party has stepped in to assume the role of the legal parent who has been unable or unwilling to undertake the obligations of parenthood.[xx] As it was held in V.C. v. M.J.B.,
at the heart of the psychological parent cases is a recognition that children have a strong interest in maintaining the ties that connect them to adults who love and provide for them. That interest, for constitutional as well as social purposes, lies in the emotional bonds that develop between family members as a result of shared daily life.[xxi]
To successfully be recognized as a psychological parent and rebut the presumption in favor of the legal parent, the third party must satisfy the four (4) prong test established in V.C. v. M.J.B. These four essential requirements are designed “to evaluate whether a third party has become a ‘psychological parent’ to a child of a fit and involved legal parent, and thus has standing to bring a custody suit.”[xxii] However, the Supreme Court further held that establishing psychological parenthood is not an easy task and the standards “should be construed and scrupulously applied in order to protect the legal parent-child relationship.”[xxiii]
First, the legal parent must have consented to and fostered the relationship between the third party and the child. Importantly, consent to create the psychological bond need not be explicit.[xxiv] A legal parent who is voluntarily absent from the child, either physically or emotionally, or is incapable of performing parental duties may, by that action, consent to and foster a parent-like relationship between the child and a third party.[xxv] Essentially, the legal parent is voluntarily and knowingly conveying to the third party parental authority that the third party would not otherwise warrant. Moreover, without such a requirement, a paid nanny or babysitter could theoretically qualify for parental status.[xxvi] Thus, this first prong makes the legal parent a participant in the creation of the bond and once created, the third party=s status as a psychological parent cannot be unilaterally terminated by the legal parent.[xxvii]
Moreover, consent is only needed from one legal parent.[xxviii] In the case of K.A.F. v. D.L.M., the legal parents contested the application for “psychological parent” status by the child’s step-parent asserting that both legal parents must consent to the relationship between the third party and the child. The Appellate Court quickly dispatched with this argument finding that such a requirement would subvert the “fundamental policy” of preventing serious psychological harm to the child “where one of the child’s legal parents colorably claims lack of consent, in circumstances where the other legal parent has consented.”[xxix] If the consent requirement mandated consent of both legal parents, “a court would be powerless to avert harm to a child through the severance of the child’s parental bond with a third party.”[xxx]
Second, the third party must have actually lived with the child in the same household in a “family setting.”[xxxi] In the matter of A.F. v. D.L.P., the Appellate Court found that the plaintiff and defendant concealed their romantic relationship from family and friends, concluding that “if the parties did not hold themselves out to the world at large as a family unit, how then can a court conclude that plaintiff lived with defendant’s child as part of a family unit, thereby satisfying the second prong of the V.C. test.”[xxxii]
The third prong requires the third party to have actually functioned as a responsible parent and assumed the obligations of parenthood. Evidence of the third party taking on significant responsibilities for the child’s care, education and development will satisfy this prong. Examples such as the third party providing clothing and shelter for the child without the expectation of reimbursement; taking the child to the doctor when the child is ill; accompanying the child to extra-curricular activities; participating in the child’s school activities; and, sharing in the child’s milestones such as birthdays, holidays, vacation, etc., support a finding that the third party has actually functioned as a parent and assumed the obligations of parenthood.[xxxiii]
Finally, to achieve the status of “psychological parent,” a third party must establish that a parental-bond has been forged between the third party and the child. The Supreme Court in V.C. v. M.L.B. found this to be “the most important factor” which will generally require expert testimony.[xxxiv]
The Appellate Court in P.B. v. T.H. addressed this fourth prong and the evidence to support the establishment of parental-bond by quoting testimony from the trial court’s summary regarding the relationship between the child and the third party, stating
She’s her mom, she’s the one [the child] turns to, the one she looks for if she falls down and gets hurt, the one she goes to get support. They have a very loving relationship; they love each other very much…not only mother daughter, but also friends, someone that you could talk to, that you can express your feelings to, that you can share your ideas with.[xxxv]
Addressing this prong requires an inquiry into not only the third party’s role, but the child’s emotional attachment to the third party. Establishing that the child relies upon the third party for emotional support and turns to the third party for comfort in times of sadness; for protection in times of insecurity; for support in times of distress and uncertainty; and, for companionship in times of joy and happiness, will satisfy the forth prong of the “psychological parent” standard. It is establishing through testimony and expert analysis that the third party is a parent in the eyes of the child.
The Rights of a Psychological Parent
So, what does it mean to achieve the status of “psychological parent?” If the Aexceptional circumstances” prong is satisfied, the second step requires the court to decide whether awarding custody to the third party would promote the best interests of the child.[xxxvi] If a third party achieves the status of “psychological parent,” thereby satisfying the “exceptional circumstances” requirement, he or she then stands in parity with the legal parent.[xxxvii] Custody and parenting time issues between the “psychological parent” and the legal parent are then to be determined utilizing the “best interests” standard and a weighting of the factors set forth in N.J.S.A. 9:2-4.
However, the legal parent’s status is a significant factor in the best interests analysis, so much so, that when the evidence concerning the child’s best interests between the legal parent and the psychological parent is in equipoise, custody will be awarded to the legal parent.[xxxviii] In other words, if the child’s best interests will equally served in both the legal parent’s custody and the psychological parent’s custody, the legal parent will be awarded custody. This result reflects the superior, fundamental and constitutionally protected rights of legal parents to the care and custody of their children. Yet, and again, the courts are ever committed to protecting the best interests of the minor child. So, despite the mandate that a legal parent will be awarded custody in situations when the legal parent and psychological parent are in equipoise, parenting time between the psychological parent and the child “will be the presumptive rule, as would be the case if two natural parents were in conflict.”[xxxix]
Importantly, the process in a contested matter from establishing “psychological parenthood” to a final custody/parenting time determination is a difficult and arduous process, both emotionally and financially. When a material factual dispute exists as to the status of a third party as a “psychological parent,” the court will be required to conduct a hearing, take testimony of witness, including expert testimony from mental health professionals, to first determine if the third party is a “psychological parent.” If the third party is deemed a “psychological parent” and the matter remains contested, the court will be then be required to determine what custody and parenting time arrangement will serve the child’s best interests, again involving testimony, potentially from additional experts, and evidence related to the factors set forth in N.J.S.A. 9:2-4. The emotional and financial toll on the litigants, the child, the attorneys and the court through the process is substantial. As with any custody decision, even involving a third party, the parties reaching their own decision, rather than relying upon the court to make such a decision, often times provides a greater service to the child’s best interests then any decision rendered by a court.
Conclusion
The law, like family structure, is an ever evolving and changing process adaptable to the many circumstances and situations that confront our society. Family situations involving domestic partners, step-parents, unmarried cohabitants, extended family, etc., are prevalent giving rise to the potential establishment of a parent-child relationship between a child and a third party. The emergence of parental bonds between a third party and a child touches upon fundamental rights of parents and the most basic function of our judicial system, to protect the emotional and physical well being of minor children. Fortunately, New Jersey courts have struck a balance between parental rights and the psychological well being of children which serves both interests and provides those involved in such situations with a road map toward resolution.
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[i] V.C. v. M.J.B., 163 N.J. 200 (2000); Watkins v. Nelson, 163 N.J. 235, 245 (2000).
[ii] Watkins v. Nelson, supra; Moriarty v. Bradt, 177 N.J. 84, 101 (2003) certif.. denied, 540 U.S. 1177, 124 S. Ct. 1408 (2004)(natural parent’s right to the care, custody and control of his or her child is a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution).
[iii] In re Adoption of Child by W.P., 163 N.J. 158, 195 (2000).
[iv] V.C. v. M.J.B., supra at 227.
[v] N.J.S.A. 9:2-4.
[vi] Kinsella v. Kinsella, 150 N.J. 276, 317-318 (1997).
[vii] Watkins, supra at 245.
[viii] Id at 253.
[ix] Id at 237.
[x] Id. at 254-255; P.B. v. T.H., 370 N.J. Super. 586, 598 (App. Div. 2004)
[xi] Id at 246; V.C. v. M.J.B., supra at 219;
[xii] Watkins, supra at 246; K.A.F. v. D.L.M. 437 N.J. Super. 123, 134 (App. Div. 2014).
[xiii] Sorentino v. Family & Children’s Soc. of Elizabeth, 72 N.J. 127, 132 (1976).
[xiv] Watkins, supra at 248.
[xv] V.C. v. M.J.B., supra at 219.
[xvi] Watkins, supra 246-248.
[xvii] Ibid.
[xviii] Sorentino v. Family & Children’s Soc. Of Elizabeth, surpa at 132; Zack v. Fiebert, 235 N.J. Super. 424, 430 (App. Div. 1995);
[xix] Ibid.
[xx] Ibid.
[xxi] Id. at 221, citing Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 844 (1977); see also K.A.F. v. D.L.M., supra at 133.
[xxii] P.B. v. T.H., supra at 595.
[xxiii] V.C. v. M.J.B., supra at 230.
[xxiv] K.A.F. v. D.L.M., supra at 139.
[xxv] V.C. v. M.J.B., supra at 233 n.6.; see also P.B. v. T.H., supra at 598.
[xxvi] See A.F. v. D.L.P., 339 N.J. Super. 312, 322 (App. Div. 2001).
[xxvii] V.C. v. M.J.B., supra at 224-225(end of relationship between legal parent and third party does not end the bond that the legal parent fostered and that actually developed between the child and the psychological parent).
[xxviii] K.A.F. v. D.L.M., supra at 135.
[xxix] Ibid.
[xxx] Ibid.
[xxxi] A.F. v. D.L.P., supra at 323.
[xxxii] Ibid.
[xxxiii] P.B. v. T.H., supra at 603.
[xxxiv] V.C. v. M.L.B., supra at 226.
[xxxv] P.B. v. T.H., supra at 604.
[xxxvi] Watkins, supra at 254.
[xxxvii] V.C. v, M.L.B., supra 227.
[xxxviii] Id. at 228.
[xxxix] Ibid.
Custody Involving A Non-Parent: The Psychological Parent
