New Jersey Appellate Division Revives Step-Parent Custody/Visitation Claim by Former Domestic Partner of Birth Mother

In a complicated three-way parental rights case, the New Jersey Appellate Division ruled on August 6 that the Mercer County Superior Court should not have dismissed without a plenary hearing a custody/visitation action by a child’s former lesbian step-parent. K.A.F. v. D.L.M., 2014 N.J. Super. LEXIS 112, 2014 WL 3843057. Key to the court’s ruling was that the consent of only one legal parent is necessary to the determination whether a third party has formed a relationship with a child sufficient to meet the requirements of the “exceptional circumstances” doctrine as a psychological parent.

The facts are complicated. K.A.F. and F.D. became a couple in 1998 and began living together in 1999. In 2000 they bought a house together and decided to have a child. K.A.F. became pregnant through donor insemination and their child, called “Arthur” by the court (a pseudonym), was born in December 2002. Although the relationship between K.A.F. and F.D. became strained, leading them to live separately, they continued to co-parent Arthur, whom F.D. formally adopted in a second-parent adoption in 2005. In November 2005, a new birth certificate was issued showing K.A.F. and F.D. as legal parents of Arthur. However, as no reconciliation had taken place between K.A.F. and F.D., K.A.F. subsequently became involved with D.M., a friend of both women, and they moved in together in the Fall of 2004. With K.A.F.’s apparent consent, D.M. began to assume a parental role toward Arthur. In May 2006, K.A.F. and D.M. registered as New Jersey domestic partners. There is some difference of opinion between K.A.F. and D.M. about the extent to which D.M. participated in Arthur’s care when he resided in their home. F.D. concedes no knowledge as to that, but contends that at all times she had “adamantly and wholeheartedly opposed [D.M.’s] attempt to parent” Arthur. The relationship of K.A.F. and D.M. eventually grew strained, and D.M. moved out in March 2010, after having, according to her, played a parental role with Arthur for six years. She continued to have regular visitation with him until June 2011, but relations with K.A.F. had so deteriorated that by November 2011, K.A.F. stopped D.M.’s contact with Arthur, and in January 2012 she wrote D.M. that she would no longer be allowed visitation with Arthur. The domestic partnership between K.A.F. and D.M. was legally dissolved in October 2011.

In February 2012, D.M. filed this lawsuit, seeking “joint custody” of Arthur and a “reasonable visitation schedule.” Remember that the legal parents of Arthur are K.A.F. and F.D., Arthur’s adoptive co-parent. K.A.F. and F.D. opposed D.M.’s lawsuit, arguing that F.D. had never given consent for D.M. to assume a parental relationship with Arthur. F.D. had remained an involved parent with regular visitation throughout this period. K.A.F. and F.D. argued that the “exceptional circumstance” of a “psychological parent” status requires the consent of both legal parents, and F.D. never consented to D.M.’s role, so her lawsuit must be dismissed. The Family Part judge agreed, and dismissed the case, refusing to hold a plenary hearing on disputed facts.
Reversing, the Appellate Division found that the trial court had misconstrued the state’s precedents.



Although K.A.F. and F.D., as the legal parents, have a fundamental right to parental autonomy that would normally exclude an assertion of parental rights by a third party, New Jersey courts hold that the “presumption in favor of the parent will be overcome by a showing of gross misconduct, unfitness, neglect, or ‘exceptional circumstances.’” One such “exceptional circumstance” that has been identified by the courts is where a third party has “stepped in to assume the role of the legal parent” and has become a “psychological parent” of the child. This requires the consent of the child’s legal parent. The trial court had ruled that if the child had two fit and involved legal parents, consent by both of them would be required for a third party to achieve this status. In this case there was no allegation that either of the legal parents was unfit or uninvolved in the child’s life.

“From the perspective of simple logic,” wrote Judge John C. Kennedy for the court, “it would be difficult to ignore the ‘psychological harm’ a child might suffer because he is deprived of the care of a psychological parent simply because only one of his ‘legal parents’ consented to the relationship.” The court’s perspective is focused on the child’s best interest, and the doctrine of psychological parent exists to protect the child’s best interest. “The clear policy” of the court’s prior rulings on psychological parents,” continued Kennedy, “is that ‘exceptional circumstances’ may require recognition of custodial or visitation rights of a third party with respect to a child where the third party has performed parental duties at the home of the child, with the consent of a legal parent, however expressed, for such a length of time that a parent-child bond has developed, and terminating that bond may cause serious psychological harm to the child. It is fatuous to suggest that this fundamental policy may be subverted, and that a court may not even examine the issue at a plenary hearing, where one of the child’s legal parents colorably claims lack of consent, in circumstances where the other legal parent has consented. If we were to accept the arguments of K.A.F. and F.D., a court would be powerless to avert harm to a child through the severance of the child’s parental bond with a third party. That result is not supported by the Court’s carefully crafted policy governing such cases.” The court dismissed the Family Part judge’s concern that allowing this proceeding to continue might result in the child having more than two legal parents.

Kennedy asserted that “the transcendent importance of preventing harm to a child weighs more heavily in the balance than the fundamental custody rights of a non-forsaking parent. It also supports the proposition that where at least one ‘legal parent’ of a child has, by his or her actions, effectively consented to the creation of a psychological parent relationship between that child and a third-party, the third party has standing to pursue the claim.” The court did note that F.D.’s alleged lack of consent may be a factor considered by the Family Part judge as part of the overall weighing of factors in determining the best interest of Arthur in this situation.

Thus, it followed that the trial judge erred in dismissing the case without holding a hearing to resolve the factual disputes between K.A.F., D.M. and F.D. The court found that it was “clear that D.M. averred sufficient facts that, if credited at a plenary hearing, would establish her standing to pursue her complaint.” D.M. alleged that “she and K.A.F. lived in a familial setting with Arthur for over six years, from the time he was eighteen months old, and that she performed many normal parental duties during that time with the full consent and encouragement of K.A.F.” She also claimed that F.D. had “assented to” her assumption of parental duties for Arthur, and ‘knew that she was parenting Arthur’ and ‘participating in all “major decisions” pertaining to his welfare.” That these averments were disputed by K.A.F. and F.D. meant that there was a dispute of material facts that could not be resolved without a hearing. Since F.D.’s consent to the formation of a parental bond with D.M. was not necessary, in the view of the court, if K.A.F. had consented, F.D.’s disavowal of such consent did not deprive D.M. of standing to bring the case. Furthermore, the court found that consent can be “inferred” from action, and need not be expressed verbally.

“Moreover,” wrote Kennedy, “the focus of the court’s inquiry must always be the intent and actions of a legal parent during the formation of the disputed relationship and not the later expressions of a legal parent about his or her desire to sever the relationship. ‘The reason is that the ending of the relationship between the legal parent and the third party does not end the bond that the legal parent fostered and that actually developed between the child and the psychological parent.’” The court thus remanded for a plenary hearing, charging the trial court to determine whether D.M. had become a psychological parent of Arthur, and whether it was in the best interest of Arthur to award D.M. a sharing of custody, visitation, “or other relief.”

Abbey True Harris argued the appeal for D.M., Robin T. Wernik argued for respondents K.A.F. and F.D., and the National Center for Lesbian Rights filed an amicus brief authored by Lawrence S. Lustberg of Gibbons P.C.

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