Yesterday, I blogged about the constitutional protections given to parents when in a custody dispute with a grandparent, including whether a psychological parent receives the same protections that a biological parent receives in such disputes (the answer is no – but you knew that because you read yesterday’s post.)

A related topic is what is the standard to apply when a biological parent is in a custody dispute with a third party.  On the same day that the Appellate Division decided the case I blogged about yesterday, they also decided the case of Schwear v. Prigge and Schwear though that case is unreported (non-precedential). This case involved a custody dispute between a natural mother and her child’s paternal uncle.  I will spare you the tortured history of the case and focus on what the law is. 

Custody disputes between a natural parent and a third party are governed by Watkins v. Nelson, 163 N.J. 235 (2000).  As the Court in Schwear noted:

In such a dispute, there is a presumption in favor of the natural parent which arises from a parent’s "fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution" and is "rooted in the right to privacy." … The parent’s right to custody is not absolute, however.The presumption in favor of the parent will be overcome by "a showing of gross misconduct, unfitness, neglect, or ‘exceptional circumstances’ affecting the welfare of the child[.]" 

When a third party seeks custody, the court must engage in a two-step analysis. First, the court must determine whether the presumption in favor of the legal parent is overcome by either a showing of "unfitness" or "exceptional circumstances."
If either is satisfied, the court must then decide whether awarding custody to the third party would promote the best interests of the child. (Citations omitted).

The rights of a parent have constitutional implications.  As such, whenever they might be abridged, there is a heightened scrutiny that much be applied.


Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or