Custody disputes are often an emotionally trying process where litigants are advocating for what they deem to be in the best interests of the child caught in the middle. Even with the opinion of a custodial expert and months, if not years of litigation, the decision is a difficult one for a trial judge to make.
A custody dispute between two fit parents requires a court to determine the issue of custody based on the best interests of the child. When the dispute is between a fit parent and a third party, however, only the “fit parent is presumed to be entitled to custody,” because the rebuttable presumption is that the child’s welfare will be protected.
A third party can overcome the presumption, however, by satisfying the standard required for termination of the rights of a non-consenting parent – unfitness, abandonment, gross misconduct or so-called “exceptional circumstances.” This is a 2-step process:
- Application of the parental termination standard or a finding of “exceptional circumstances.” Exceptional circumstances may be satisfied by establishing that the third party has become the child’s psychological parent.
- If the parental termination standard or “exceptional circumstances” component is fulfilled, the court must decide whether to award custody to the third party in the best interests of the child.
As part of Step 1, to determine if there exists a “parent-like” relationship between a third party and a child, the following 4 prongs must also be fulfilled:
- The biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child.
- The petitioner and the child lived together in the same household.
- The petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation [a petitioner’s contribution to a child’s support need not be monetary].
- The petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.
Only after this test is fulfilled under the “exceptional circumstances” option can the best interests standard be applied under Step 2.
In J.F. v. R.M., an unpublished (not precedential) Appellate Division decision, the biological father, was denied residential custody of the child in favor of the child’s great-grandmother despite him being deemed a fit parent. Without getting into too much detail about the facts, the child lived with his maternal great-grandmother after his birth in 2007. Dad was not involved in his life until 2011, claiming that he did not know the child was his son. The mother lived with great-grandmother on and off for three and a half years before departing for good.
In early 2011, great-grandmother filed an action seeking custody of the child, which was granted. She also sought to establish dad’s paternity and his obligation to pay child support. Dad was granted “open and liberal” parenting time, and he exercised time regularly with the child, including overnights.
In later 2013, dad filed an application for full custody of the child. Great-grandmother opposed the application, arguing that there was no basis for a change. After a hearing, the trial judge denied dad’s application and recognizing that, because there was no allegation of parental unfitness or gross misconduct by dad, the law required great-grandmother to demonstrate the existence of “exceptional circumstances” – such as “psychological-parent” status to retain residential custody of the child as a non-parent.
After concluding that she was the child’s psychological-parent based on her bond with the child, and that the child used her as a parental figure even though he knew she was not his mother, the court then applied the “best interests of the child” standard in denying dad’s application. In so holding, the trial court noted that because great-grandmother was deemed a psychological-parent to the child, she was held on equal footing with dad as a parental figure and, as a result, the best interests standard applied. Ultimately, the court found no basis to change the custodial arrangement, despite noting that dad was doing “a great job as a father,” because there was no dispute that the child was doing great.
Dad appealed, arguing that great-grandmother was not a psychological-parent and, as a result, the trial court should have applied the “parental fitness” test, rather than the best interests standard. The Appellate Division disagreed. Primarily, he argued that he did not consent or foster the child’s relationship with great-grandmother under Step 1 of the psychological-parent test detailed above because he did not know for certain that he was the father. The Appellate Division, however, noted dad’s concession to knowing mom was pregnant, he never sought to determine paternity until great-grandmother sought child support, and then 2 more years passed before he sought residential custody. As a result, his actions/inactions were deemed “tacit consent” to great-grandmother’s relationship under the first part of the 4-part test.
Interestingly, the Appellate Division also found the fourth part of the 4-part test fulfilled as to the length of the child’s relationship with great-grandmother because parts two and three were fulfilled with the child living with her throughout his entire life and her being the primary caretaker.
As a result, the Appellate Division affirmed the trial court’s finding that great-grandmother was the psychological-parent and use of the best interests standard in denying dad’s application. Custody disputes are very fact sensitive situations. The facts and circumstances here were certainly of no exception in denying a fit biological father’s request for residential custody of the child.
Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group. Robert practices throughout New Jersey and is based in the firm’s Roseland, New Jersey office. He can be reached at (973) 994-7526, or firstname.lastname@example.org.
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