Three’s a Crowd

Apr 07, 2014

Generally, when we think of child custody disputes, we think of two biological or adoptive parents fighting for custody of their child. However, under certain circumstances, a custody dispute can be between a biological or adoptive parent and a third-party who has been a parent-like figure in the child’s life. In order for third-parties to obtain custody of a child, they must be deemed a psychological parent. This concept was explored once again in a recent unpublished decision by the New Jersey Appellate Division, E.B.S. v. K.M..

            In this case, the defendant’s sixteen-year-old granddaughter gave birth to a baby. The granddaughter surrendered her parental rights and consented to the defendant’s adoption of the child. The defendant, before leaving to get the baby, encouraged the plaintiffs, who were her close friends, to consider the possibility of adopting the child. One of the plaintiff’s parents paid for the defendant to fly to Texas to get the baby, and the defendant brought the baby to visit the plaintiffs nine days after returning to New Jersey.

            After this, the plaintiffs spent a lot of time with the child, buying her a crib and hiring a nanny. For most of 2010 and much of 2011, the baby was with the plaintiffs. At this time, the defendant had a series of health issues and could not care for the child. Later, the defendant demanded that the plaintiffs return the baby to her, and the plaintiffs complied, assuming that the defendant was reaching the end of her life and wanted to spend time with the child before she passed.

            After some time, the plaintiffs realized that the defendant had changed her mind about allowing the plaintiffs to adopt the child. Upon this realization, the plaintiffs sought custody of the child.

            The trial judge found, and the Appellate Division agreed, that under the four-pronged test for psychological parents announced by V.C. v. M.J.B., the plaintiffs were the psychological parents of the child.

            The Court explained the requirements for finding that a third-party is a psychological parent. Those requirements are:

(1)   The legal parent consented to and fostered the relationship between the third-party and the child;

(2)   The third-party lived with the child;

(3)   The third-party performed parental functions for the child to a significant degree; and

(4)   A parent-child bond has been forged.

The most important prong, the Court emphasized, is the fourth prong, because it requires that a parent-child bond exists. The Court also emphasized the significance of the first prong, because it requires that the adoptive or biological parent participate in the forming of the parent-child relationship between the child and the third-party.

            In this case, because all four factors were satisfied, the Court found that the plaintiffs were the psychological parents of the child, and therefore the parties were joint legal custodians of the child. The Court granted the plaintiffs status as the primary residential parents of the child, and declared the defendant the parent of alternate residence.

            This case explains the way a court will determine whether a third party is a psychological parent. If a court declares that a third party is a psychological parent of a child, then that third party will have rights to seek custody of and/or visitation with the child. However, all four of the requirements set forth in V.C. v. M.J.B. must be fulfilled in order for a third party to be declared a psychological parent.

            If you have questions or concerns about whether you could be considered a psychological parent of a child, please contact the experienced New Jersey family lawyers at Sarno da Costa D’Aniello Maceri LLC, who will help you determine whether you satisfy the requirements to be deemed a psychological parent, and who will be able to work with you through your custody dispute.

            If you wish to speak to one of our experienced attorneys, please call us at 973-274-5200.