It is not uncommon for grandparents or other family members to get custody of other family members when the children’s parents have issues preventing them from caring for their children and/or when there is DCPP involvement. Very often, the parents consent, in one way or another, to the third party’s relationship with the child. The longer the relationship goes on and the more that the third party does for the child, the greater the third party can become the child’s psychological parents. Under the law, the finding of psychological parentage can give the third party rights to custody and/or parenting time.

This was exactly what happened in the case of D.S. v. L.S and P.G., and unreported (non-precedential) Appellate Division case released on January 2, 2024. In this case, the maternal grandmother (“MGM”) claimed to be the psychological parent to her grandson. In this case, the child was born in 2008. Mom and child moved in with MGM some time in 2009 and lived with her for approximately 4 years. During that time, MGM provided financial support in the form of housing, food, clothing, toys, and books., transported the child to and from daycare, school, and doctors’ appointments and provided child care when mom secured employment.

In late 2013, mom and child moved into an apartment but MGM continued to provide financial assistance by paying the security deposit, partial rent, phone bill, and utilities for “several months.” She also continued to provide childcare. In 2014, Mom’s driver’s license was suspended for dui. As a result, MGM was responsible for taking the child to daycare, doctors’ appointments, school, and other activities.

In 2015, MGM sough custody after an incident related to mom’s alleged alcohol abuse and in July 2015, the court granted MGM physical custody pending an DCPP investigation. In October 2015, the parties were granted joint legal custody with MGM but MGM retained sole physical custody. Subsequent orders were entered maintaining physical custody with MGM.

In 2018, dad sought residential custody and MGM counterclaimed seeking a declaration that she was a psychological parent and co-equal rights with the parents. The Court denied MGM’s counterclaim because there was no expert testimony, granted her visitation, and granted mom residential custody. However, before mom took custody, she relapsed and MGM retained custody.

A four day hearing was held where MGM testified as did an expert on her behalf. Mom testified too. Dad chose not to testify. The trial court now found that MGM was the child’s psychological parent. The Appellate Division noted that trial judge found:

Based on the evidence, the court found “there was consent that [MGM] stepped into the position of psychological parent for [Bob]” based on Mom’s actions at the time, after noting that only one party needs to consent or foster the relationship. Additionally, the court concluded a bond existed between MGM and Bob based on the uncontroverted testimony.

The Appellate Division affirmed restating the law on psychological parentage espoused in the VC v. MJB case, as follows:

A grandparent can demonstrate that he or she has become a psychological parent to the child and stands in the shoes of a parent. V.C., 163 N.J. at 221-28. To be a psychological parent, “the legal parent must consent to and foster the relationship between the third party and the child; the third party must have lived with the child; the third party must perform parental functions for the child to a significant degree; and most important, a parent-child bond must be forged.” Id. at 223. “What is crucial here is not the amount of time but the nature of the relationship.” Id. at 226. “Once a third party has been determined to be a
psychological parent to a child . . . he or she stands in parity with the legal parent.” Id. at 227.

In affirming, the Appellate Division noted that MGM contributed to the care and emotional, physical, and educational needs of the child since at least 2009. Moreover, they noted that the record was clear that MGM was the constant in the child’s lief and primary caretaker and residential custody and that the consistency of same resulted in a reciprocal health bond between her and the child. Thus, while the parents may not have consented to MGM becoming the natural parent, mom consented to the nature of the relationship that lead to the finding of psychological parentage.

The case contains a good primer on that law in this regard as the factual circumstances are not all that uncommon.

Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Department 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 is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or