Apparently a Parent

Aug 13, 2014

Generally, a child custody dispute is one between a child’s biological or adoptive parents. Occasionally, a child custody dispute can involve a third party if circumstances exist that could qualify the third party as a psychological parent. A New Jersey Supreme Court case, V.C. v. M.J.B., created four requirements that must be fulfilled for a third party to qualify as a psychological parent:

The legal parent must consent to and foster the relationship between the third party and the child; the third party must have lived with the child; the third party must perform parental functions for the child to a significant degree; and . . . a parent-child bond must be forged.

This case law has served as the precedent for psychological parents. However, the first requirement, parental consent to the relationship between the third party and the child, was at issue in a recently published case out of the New Jersey Appellate Division, K.A.F. v. D.L.M.

In that case, K.A.F. and F.D., after having been romantically involved for two years, decided to have a child together. They arranged for a sperm donor and K.A.F. carried the child.  Three years later, F.D. adopted the child with the consent of K.A.F., so that the child’s birth certificate reflected K.A.F. and F.D. as his parents. After K.A.F. and F.D. ended their relationship, K.A.F. became romantically involved with D.M., with whom she bought a house and formalized their domestic partnership a few years later. D.M. took on parenting responsibilities of the child when he was in her home with K.A.F. Eventually, K.A.F. and D.M. separated, but for one year D.M. had visitation with the child, until K.A.F. refused to allow any more visits. D.M. filed for visitation, and K.A.F. and F.D. opposed, claiming that F.D. had never consented to the relationship between D.M. and the child, and that, therefore, D.M. could not be found to be a psychological parent under V.C.

The Appellate Division disagreed. The Court explained that when a third party seeks custody, the court must first “determine whether the presumption in favor of the legal parent is overcome by . . . exceptional circumstances.” One of those exceptional circumstances is when changing custody would cause the child serious psychological harm, which includes a third party who is a psychological parent. If the presumption in favor of the legal parent is overcome, then the Court must take the action that promotes the best interests of the child.

The Court then looked to whether the consent of both parents was required for a third party to be a psychological parent. The Court found that neither the Court’s language in V.C. nor the history or the policy behind the law supported the contention that both legal parents need to consent. Therefore, the Court held that only one parent must consent to the relationship between the third party and the child. Moreover, consent does not need to be explicit, but rather can be implied from the legal parent’s actions. However, the Court stated that the non-consenting parent’s lack of consent is a relevant factor in determining whether a third party is a psychological parent and may be considered when deciding what promotes the best interests of the child.

Therefore, under this case, while only one legal parent need consent to the relationship in order for a court to find that a third party is a psychological parent, the other legal parent’s non-consent is still a relevant factor to the determination. Therefore, the other parent’s non-consent, while not a complete roadblock to a finding that a third party is a psychological parent, could still be an obstacle that must be overcome in coming to that decision.

If you have questions or concerns about you or a third person being a psychological parent, please contact the experienced family lawyers at Sarno da Costa D’Aniello Maceri LLC at 973-274-5200.