Ann Fabrikant, Esq.NJ Divorce and Family Law Attorney
The concept of a married couple has faced its challenges but due to its binary nature, there are only so many configurations that can come to mind. Zoom out to the model of parenting and you are now under the heading of ‘family’. Now, we all know that family comes in all forms. However, the law defines what a family is.
As an attorney specializing in family law, I witness the changing landscape of families and relationships in court on a regular basis. Leading the charge are same-sex couples and members of the LGBTQ community, who have been bucking tradition for decades. Adoption, or the use of assisted reproductive technology, have legal components which family law attorneys specialize in.
Those cases still, however, tend to involve two parents. As recently as last year, a new concept called “tri-parenting” was introduced in trial court, involving a same-sex married couple and their female companion. Two men had agreed to jointly raise a child with a woman, after the woman had conceived via one of the men’s sperm and carried the child to term. All three took parenting classes, held separate baby showers and prepared their homes for the child to reside with all three parties.
The origins of this arrangement may seem unique but sadly, it proved just as vulnerable to breakdown as any other. For years following the child’s birth, the three parties co-parented the child, but one day, the mother decided to get married and move to California with the baby. Unable to resolve matters of custody and parenting time, the married couple were forced to file a complaint seeking legal and physical custody.
Therein lies the true challenge to legal precedent. Custody and parenting time are typically matters that are exclusive to biological or adoptive parents. Otherwise, a parent-child relationship must fit certain “extraordinary circumstances.” These circumstances exist when a third party candidate is deemed a “psychological parent.” There are essentially four requirements that must be satisfied in order for a third party to be considered a psychological parent:
- The legal parent must agree to and foster the relationship between the third party and the child.
- The child must have lived with the third party.
- The third party must perform parental functions for the child to a significant degree; and
- A parent-child bond must be formed.
In this case, the third party was the legal parent’s spouse, a schoolteacher who took on a great deal of day-to-day caretaker responsibilities, especially during the summer. Yet, it still took more than 19 days for the court to determine whether he was a psychological parent, despite the fact that the biological parents consented to and encouraged a parent-like relationship between him and the child. In addition to the years spent forming said relationship, the court acknowledged that a significant bond had been established with the child and that the man was indeed a psychological parent.
As always, the New Jersey family court ruled in the “best interests of the child” and the married couple was ordered to share equal legal and residential custody with the mother. The child would live primarily with the couple while still receiving substantial parenting time with the mother. It is important to note, however, that the status of psychological parentage did not confer legal parentage. The latter is only conferred upon a party if he or she carries the child, adopts the child, or is biologically related to the child.
New Jersey is one of a handful of states to have recognized a tri-parenting arrangement. The heteronormative concept of a family consisting of one man, one woman and their biological children has never been 100% accurate or representative. Yet, legal precedent is finally beginning to the many blends of humanity that modern families are comprised of. If your family is non-traditional and you have any questions, do not hesitate to call and make an appointment.