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Appellate Division Clarifies the Standard to be Applied When Considering Applications for Custody and Parenting Time of Third Party “Psychological Parents”

On August 6, 2014, the Appellate Division published the decision in KAF v. DLM., in which the Court clarified the standard that family courts are to apply when considering applications by a third party seeking custody and/or visitation and claims that he or she is a “psychological parent” to a child who already has fit and involved legal parent(s).

In this case, during the same-sex romantic relationship between KAF and FD, they bought a home together and  decided to have a child together.  They found a sperm donor, and KAF carried the child, a son, who was born in 2002.  Although KAF and FD separated in 2004, they agreed to equally share time with the child, and in 2005 FD formally adopted the boy with the consent of KAF. In 2004, however, KAF became romantically involved with DLM. KAF and DLM legally formalized their domestic partnership in 2006. In 2010 KAF and DLM split and DLM moved out.  DLM had some visitation with the child, including overnight visitation.  In 2012 the family court dissolved the domestic partnership between KAF and DLM. In that matter, DLM apparently did not seek custody or parenting time rights. After KAF told DLM she could have no further contact with her son, DLM filed a complaint seeking custody and visitation, asserting that she was a “psychological parent” to the boy. KAF and FD opposed DLM’s application.

The Family Court dismissed DLM’s complaint without a plenary hearing. DLM asserted that when the child was living in the home of DLM and KAF she was an equal parent with KAF, which KAF disputed. FD asserted that she did not know the extent of DLM’s actual involvement with the child in KAF’s home, although she adamantly denied that she consented to DLM having a psychological parent relationship with her son. The Court accepted FD’s argument, finding FD, the child’s legally adoptive parent, did not consent to a psychological parent relationship between DLM and the child, and that pursuant to V.C. v. M.J.B., 163 N.J. 200 (2000),  “when two involved and fit parents are involved in [the child’s] life an application under V.C. . . . require[s] both to consent” to the creation of the claimed relationship before the court could even consider the issue.

The Appellate Division, however, reversed the family court’s ruling and ordered on remand that the Family Court conduct a plenary hearing. The Appellate Division held that even if the child’s adoptive parent, FD, did not consent to DLM performing parental duties, that lack of consent did not deprive DLM of standing to bring an action for custody and parenting time.

The Appellate Division examined the case of Sorentino v. Family & Children’s Society of Elizabeth, 72 N.J. 127 (1977), where a young mother put her child up for adoption. The child’s biological father protested the agency putting his child up for adoption, but he was rebuffed. After the child’s biological parents married more than a year later, they filed a complaint seeking to regain custody. The family court found the child’s biological parents were fit parents, that the defendant agency coerced and pressured the mother into surrender her child for adoption, and that the biological father had been denied his constitutional rights.  While the Supreme Court acknowledged that the family court had an evidential basis to turn the child immediately over to the biological parents, the Supreme Court, however, found that a hearing should have been held by the family court.  The biological parents seeking custody were essentially strangers to the young child, who had never been formally adopted but  the three year old had been living with prospective adoptive parents and been nurtured by them. The Supreme Court recognized the “serious potential for psychological harm to young children if they are removed from a foster home where they had lived an been nurtured during their early years.” The Supreme Court expressed concern for the child having to  experience such a quick and drastic change in circumstances given the length of time with spent with the foster parents and the relationship built with the foster parents. The Supreme Court found that a hearing should have been held because the “possibility of serious and psychological harm to the child in this case transcends all other considerations”.  While the biological parents’ right to care, custody and control of their child is considered a fundamental liberty interest protected by the constitution, the Supreme Court noted that these fundamental rights are not absolute and that the presumption in favor of biological parents may be overcome by a showing of gross misconduct, unfitness, neglect or “exceptional circumstances” affecting the welfare of the child.

The Appellate Division also examined the case of V.C. v. M.J.B., 163 N.J. 200 (2000), where the Supreme Court further explained that within the category of “exceptional circumstances” that may be used to overcome the presumption in favor of natural parents, is a “subset known as the pscyhological parent cases in which a third party has stepped in to assume the role of the legal parents”. This “exceptional circumstances” exception, moreover, does not require the third party to show that the legal or biological parents are unfit parents. Exceptional circumstances based on the probability of serious psychological harm to the child may deprive a parent of custody. The Supreme Court did not define “exceptional circumstances” and left that to be decided on a case-by-case basis, but stated that “exceptional circumstances” are not limited to the circumstances in Sorentino where the parents were strangers to the child and that “exceptional circumstances” may exist where a change in custody could cause “serious psychological harm to a child”. The Court in V.C. indicated that these “exceptional circumstances” cases recognize a child’s interest in “maintaining the ties that connect them to adults who love and provide for them.” Id. at 219, 221. The Supreme Court explained that a third party may become a psychological parent when he or she “steps into [the] shoes” of a natural parents, and that custody disputes between a psychological parent and natural parent are determined based on the best interest of the child standard. Id. at 223-24, 227-28.

The Court in V.C. created a four part test to determine if a third party is a “pscyhological parent” to a child: (1) The legal parent must consent to and foster the relationship between the third party and the child; (2) The third party must have lived with the child; (3) the third party must perform parental functions for the child to a significant degree; and (4) most importantly, the parent-child bond must be formed. Id. at 223.

When custody is sought by a third party, the family court is to undergo a two-step analysis. First, the court has to decide whether the presumption in favor of the legal parent is overcome by a showing of parental “unfitness” or “exceptional circumstances.” Watkins v. Nelson, 163 N.J. 235, 247 (2000). If that presumption can be rebutted, only then does the court address the second step, where the court determines if awarding custody or other relief to the third party would promote the best interests of the child. Id. at 254.

In the context of this case, the Appellate Division addressed whether both parents have to consent to a third party taking on the role of psychological parent. The Appellate Division reasoned that one cannot ignore psychological harm to a child if he is deprived the care of a psychological parent because one of his “legal parents” did not consent to the relationship. The purpose of the policy established in Sorrentino, V.C. and Watkins is to consider the harm to a child in terminating the bond the child has with a psychological parent. Accepting FD’s and KAF’s argument could leave the court unable to avoid harm to the child.

The Appellate Division indicated that FD’s lack of consent, however, was not unimportant. The family court may consider FD’s lack of consent as a factor among many in determining if DLM is a psychological parent and, if so, whether the best interest of the child warrants DLM having custody of visitation. However, the Appellate Division stated that the longer that the third party has had a psychological parent relationship with the child, the less important the lack of consent by one legal parent would be.

The Appellate Division stated that the trial court should have conducted a plenary hearing as to DLM’s claims of being a psychological parent given the genuine disputed issues of material fact regarding the welfare of a child. For instance, DM asserted that she and KAF lived in a familial setting with the boy for more than six years and that in that time she performed normal parental duties with full consent and encouragement of KAF. She further claimed that FD knew that she was performing these duties for the child and consented to her participating in major decisions affecting the boy’s welfare. Because KAF and FD disputed these allegations, a hearing was required.