In our practice, we encounter two situations that are extremely difficult, with some of the highest stakes for clients when it comes to their children. The first is when two people are in a relationship, but not in a domestic partnership, civil union, or marriage, and one gives birth to a biological child. After birth, the biological parent and the other parent raise the child together, as a family, for a period of time. The second situation is where a non-biological parent marries the biological parent, becomes a step-parent, and essentially raises the child as his or her own.
Why is this article called “Parents Acting Badly”? Biological parents know what they are doing, and they know they are trying to remove a parent from their child’s life. The problem is that biological parents hold all the cards because they are the child’s “legal parent.” If you find yourself in one of the two above situations, you have no legal rights without getting the court involved. Until a judge makes a determination on your status as a psychological parent, which we will discuss below, it is perfectly legal for the biological/legal parent to deny you access to the child without any negative ramifications.
If a legal parent is denying you access, your only option is to file a complaint in the Superior Court, Family Part, for custody and parenting time. In the complaint, you must allege that you are a psychological parent to the child. In doing that, you have to address four factors that were outlined in the case of V.C. v. M.J.B., 163 N.J. 200 (2000). The factors are:
- The legal parent must consent to and foster the relationship between you and the child.
- You must have lived with the child for a sufficient period of time.
- You must perform parental functions for the child to a significant degree.
- You and the child must have a psychological bond.
These factors may seem self-explanatory, but, in reality, they are ill-defined factors that judges view very differently across the state. In making your initial application, you must be ready to address all of these factors. It is a virtual certainty that you will need to have a Trial to determine whether you are a psychological parent. You will have to go through all of this just to determine if you have the right to assert custody and parenting time rights. Put another way, if you are not found to be a psychological parent, you have no right to see your child. It is very rough!
If you are found to be a psychological parent, you “step into the shoes” of a legal parent. However, you are not a legal parent and never will be absent a second-parent adoption, which can only be done with the consent of the legal parent. You can assert joint legal custody, joint residential custody, or any other type of custodial arrangement that is in the best interests of the child. You can ask for the establishment of a parenting time schedule. Basically, once you cross the psychological parent bridge, you can make all of the arguments that you would have made if you were the child’s biological/legal parent.
The NJ Family Law Attorneys at Previte & Nachlinger want you to take away three important things from this article.
- First, if you are not a legal parent and have established a psychological parent relationship with a child, you must diligently protect your interests. A complaint needs to be filed immediately upon your access to the child being threatened. Waiting is not an option! Each day that goes by makes your case more difficult.
- Second, if you are not married and having a child that will not be your biological child, ensure you get a second-parent adoption. If the biological parent will not agree to the adoption, you should think twice about both your relationship and becoming a parent to the child.
- Third, if you are becoming a step-parent, consider a second parent adoption if it is available under the facts of your case. If not, be very diligent about ensuring you can prove all of the factors of psychological parentage in the event you divorce the legal parent.
This is a very emotional area of the law. Our NJ Family Law Attorneys have handled many of these cases, including several Trials. We can help you through the process. However, always remember, there is a child in the middle of these disputes and regardless of which side you are on, everyone must keep in mind him or her.