In the recently published 67-page trial court decision of D.G. and S.H. v. K.S., the trial court dealt with the novel issue of custody and parenting time in a “tri-parenting” relationship. In that matter, D.G. and his husband, S.H., along with their friend K.S. embarked on a journey of conceiving and raising a child together. The parties agreed to use D.G.’s sperm and K.S.’s egg, as they had known each other longer, and they would give the child S.H.’s surname. During K.S.’s pregnancy, the parties had two baby showers, one at D.G. and S.H.’s Manhattan apartment, and one at K.S.’s home in Point Pleasant, New Jersey. All three parties attended parenting classes and began preparing both of their homes for the child’s arrival, purchasing everything in duplicate.

After the child, O.S.H., was born in 2009, D.G. and S.H. moved into K.S’s home in Point Pleasant and all three parties co-parented the child. D.G. operated a business at the Jersey Shore and, shortly after giving birth, K.S. returned to her job at her family’s restaurant. S.H., a high-school teacher, undertook the significant portion of the parenting responsibilities as he was on summer recess.

At the end of the summer, D.G. and S.H. rented a home in Point Pleasant to be near K.S. Thereafter, parenting time fluctuated, but was successful. In the summers, D.G. and S.H. undertook the significant portion of parenting time responsibilities due to K.S’s job responsibilities, and in the winters, K.S. undertook the significant portion of parenting time responsibilities, including taking the child to Costa Rica, where she owned a home, for varying amounts of time. In 2012, Superstorm Sandy destroyed D.G. and S.H.’s rental home, so they began enjoying weekend parenting time in New York City.

The parties were able to effectively and efficiently co-parent with one another for most of the child’s early life; however, things broke down when K.S. announced that she had fallen in love with her neighbor in Costa Rica, A.A., who she intended to marry, and that she wanted to relocate with the child to California where A.A. resided. A.A. could not relocate to New Jersey due to parenting obligations to children he had from a prior marriage.

D.G. and S.H. requested that K.S. prepare parenting time proposal for them so they could determine if the relocation would work together with their idea of “tri-parenting”. K.S. prepared a parenting time proposal and after considerable discussion, D.G. and S.H. rejected it. D.G. and S.H. then filed a Complaint seeking to establish 1.) legal and physical custody of O.S.H.; 2.) parenting time; and 3.) that S.H. was the child’s psychological and legal parent. K.S. filed a counterclaim and answer seeking 1.) to establish a legal custodial relationship between the parties, with physical custody vested in K.S.; 2.) to establish a parenting time arrangement; 3.) child support and medical coverage; and 4.) permission to relocate with the child to California.

A plenary hearing was scheduled and took place over 19 days.paper dolls

Psychological Parentage of S.H.

S.H. sought an order declaring him to be the psychological parent of the O.S.H., which was supported by D.G. K.S. stipulated that S.H. was the child’s psychological parent on the eve of trial and the court found that the undisputed facts of this matter supported such a conclusion.

In order for a person to be considered a child’s psychological parent, there must be a finding of “exceptional circumstances” (See V.C. v. M.J.B., 163 N.J. 200, 219 cert. denied. 531 U.S. 926, (2000)). To find that “exceptional circumstances” exists, the Court must find the existence of four elements:

(1) that the biological or adoptive parent consent to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child; the legal parent must have fostered the formation of the parental relationship between the third party and the child;

(2) that the petitioner and the child lived together in the same household’

(3) that the petitioner assumed the obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing toward the child’s support without expectation of financial compensation [a petitioner’s contribution to a child’s support need not be monetary]; and

(4) that 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. (See V.C. v. M.J.B. at 223).

The court detailed at great length, all of the actions undertaken by S.H. and concluded that he is appropriately the child’s psychological parent. Among some of the court’s considerations were the fact that D.G. and K.S. consented to and fostered a parent-like relationship between S.H. and the child,  the idea that all three of the parties would be the child’s parents was formed before the child was even conceived or born, the parties chose to give the child S.H.’s surname, and since the child was born, and over the course of the past six years, S.H. contributed towards the child’s support, both monetarily and otherwise, and established a bond with the child.

Residential and Legal Custody

Once the court has established the existence of a psychological parent, the best interest of the child must be considered when determining custody. The court found that since there was never a written agreement or prior court order regarding custody, the court must determine the custodial relationship that serves the best interests of the child, and evaluate the factors set forth in N.J.S.A. 9:2-4(c). Both Plaintiffs and Defendant hired custody experts, who evaluated each of the parties and the child. The court conducted a detailed, lengthy analysis of the factors set forth in N.J.S.A. 9:2-4(c), and upon doing so, ultimately concluded that D.G., S.H. and K.S. should have equal legal and residential custody of the child, and the court established a 50/50 parenting time schedule. Although rare, joint residential custody is a suitable alternative to sole custody in family law actions, when “joint custody is likely to foster the best interests of the child in the proper case.” See Beck v. Beck, 86 N.J. 480, 488 (1981). The analysis of the factors set forth in N.J.S.A. 9:2-4(c) is quite expansive and delves deep into the loving and caring relationship the parties share with the child.

Relocation and Removal Application by Defendant

The Court reviewed K.S.’s application to relocate with the child to California under the O’Connor standard for relocation, which applies in this situation as the Court determined that all of the parties shall share joint legal and residential custody. “If, the parents truly share both legal and physical custody, an application by one parent to relocate and remove the residence of the child to an out-of-state location must be analyzed as an application for a change of custody, where the partying seeking the change in the joint custodial relationship must demonstrate that the best interests of the child would be better served by residential custody being primarily vested with the relocating parent. O’Connor v. O’Connor, 349 N.J. Super. 381, 385 (App. Div. 2002).

The court opined that K.S.’s reasons for the move to California are at best tentative and speculative, including a major change in her living situation with A.A. (originally K.S. was going to live with A.A. and now is not), her employment and educational plans (K.S. intends to find part-time work and go to school part-time), her availability to care for the child and her lack of family support to help with the child’s care, among other things. Additionally, the child would be uprooted from her long and stable living arrangement with the parties and the distance between California and New Jersey would diminish the child’s ability to maintain her bond with D.G. and S.H., exclude them from her daily life activities and abrogate frequent parenting time. Thus, the court denied K.S.’s application to relocate with the child to California.

Legal Parentage

S.H. also sought to be established as the legal parent of O.S.H., not just the psychological parent. However, this was denied as a matter of law on the basis that the court does not have jurisdiction to create a new recognition of legal parentage other than what already exists—genetic contribution, adoption, or gestational primacy. Further, although the best interest of the child standard is used for various family law determinations, it is not a factor in defining parenthood under the Parentage Act. (N.J.S.A. 9:17:38 through 9:17-59).

While the court was sympathetic to S.H.’s request to establish legal parentage, same is not supported by statute or case law. Since such a determination would likely have far-reaching implications, the court determined that this issue is best addressed by other branches of government, specifically the Legislature.

In a world where the nuclear family has evolved into many different shapes and sizes, the law (and the courts) quite simply cannot keep up. With the evolution of today’s family, “tri-parenting” and other, similar custody and parenting time situations will emerge, creating a new, unique set of issues for families who are dissolving/separating. As the role of “parent” expands, it will be interesting to see how the courts will progress to handle these delicate issues.

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