Parents Acting Badly: How A Psychological Parent Can Protect His Or Her Children

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:

  1. The legal parent must consent to and foster the relationship between you
    and the child.
  2. You must have lived with the child for a sufficient period of time.
  3. You must perform parental functions for the child to a significant degree.
  4. 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.

at NJ Divorce
Solutions 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
, 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.

About the Author


John Nachlinger is a co-founder and managing attorney of Netsquire, a family law firm focused on streamlining divorces through effective mediation, settlement drafting, and court filing assistance. As a New Jersey Supreme Court Certified Matrimonial Law Attorney and Qualified Mediator, John guides couples toward equitable agreements without the cost and stress of litigation.

Recognized as a New Jersey Super Lawyer for over a decade, John’s client-focused approach aims to foster understanding during challenging transitions. With a background spanning top law journals, judicial clerkships, and boutique family law firms, John now applies his analytical skills to create workable solutions for all parties. His mediation services reshape the divorce journey by prioritizing compassion and compromise.

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