Psychological Parent Doctrine

Are you a psychological parent?

If you have been co-parenting a child who is not legally your own, and you and the child’s legal parent have had a falling out, you may be wondering whether or not you have any child custody or visitation rights. In New Jersey, it is possible that you could have some rights as a “psychological parent.” A court considering this issue will look at what your parenting role has been and whether or not both you and the child’s legal parent intended for you to act as a parent to the child. If you have taken on a parental role in the context of a family relationship, and both you and your child’s legal parent clearly planned to be co-parents from the outset, there is a much better chance that a court will grant you parenting time. This is known as the “psychological parent” or “de facto parent” doctrine.

A person attempting to establish a psychological parenting claim must prove each of the following:

  • the biological or adoptive parent consented to, and fostered, the person’s formation of a parent-like relationship with the child,
  • the person lived with the child in the same household,
  • the person assumed significant responsibility for the child’s care, education and development, including contributing toward the child’s support (financial or otherwise) without any expectation of compensation, and
  • the person functioned in a parental role for long enough to establish a bonded, dependent, parent-child type of relationship.

The rights and responsibilities of a psychological parent may be more limited than the rights of a legal parent in some situations. New Jersey courts, however, will treat parties who can prove all of the above factors as equal to legal parents in a custody case. This means that a court will decide any custody and visitation disputes by analyzing the best interests of the child according to the same factors that would apply to a custody dispute between two legal parents.

De Facto Parents of Children with One Legal Parent

Parties have primarily invoked the psychological parent doctrine in cases where there is no second legal parent, particularly in same-sex couple relationships where one partner either goes through a process of assisted reproduction (sperm donation or surrogacy), resulting at some point in termination of the rights of the second natural parent, or where one partner adopts a child as a single parent, thus also terminating any parental rights of the natural parents. In such cases, the sole legal parent’s partner often becomes a “de facto parent” very early in the child’s life, with the full consent and support of the sole legal parent. The de facto second parent may never seek legal parental status, possibly because they simply cannot foresee the ending of their romantic relationship with the legal parent. If the relationship does eventually end, however, and a custody or visitation battle ensues, the parent without legal status risks being cut off from the child. The psychological parent doctrine developed to protect children who had formed a parental bond with such non-legal second parents from losing the relationship.  

De Facto Parents of Children with Two Legal Parents

There is nothing specifically limiting the psychological parent doctrine to same-sex partners. It may also apply to others, such as grandparents or step-parents, who have lived with a child in a parental role with the consent of the other parent and formed a deep bond with the child. An interesting question, however, is what happens when there is a second legal parent who objects to the child’s ongoing relationship with the psychological parent. In other contexts, such as New Jersey’s grandparent visitation statute, legal parents have the power to object unless disruption of the other relationship would be harmful to the child. Recent New Jersey case law suggests that, at least in some cases, the interests of a child in maintaining a relationship with a psychological parent are more important than the potential objections of a second legal parent.

Tri-Parenting Situations and New Jersey Law

The applicability of the psychological parent doctrine in cases in which there are two legal parents is of increasing interest in light of today’s complicated families. Scenarios involving same-sex couples in particular have raised the question of whether or not it might be appropriate in some cases to recognize a third legal parent, as is allowed by California’s new “3rd parent law.”

In February of 2016, a New Jersey trial court addressed a “tri-parenting” arrangement created among three friends—a genetic birth mother and two male partners, one of whom was the biological father (D.G. and S.H. v. K.S ).  The three clearly planned from the outset to be equal parents and jointly raise their child, but the plan went awry when the mother wanted to move out-of-state and take the child with her. The court noted that the second father could not be a legal parent because he lacked a biological connection to the child and had not formally adopted her. Nevertheless, the court found him to be a psychological parent, and put him on equal ground with the two legal parents, awarding joint legal and joint residential custody to all three parties, and denying the mother’s request to relocate the child to a different state. Although the court further found that the two biological parents were jointly responsible for financial support, the psychological parent voluntary included himself in the child support calculation.

There is no current law providing for recognition of three legal parents in New Jersey. As D.G. shows, however, the status of a psychological parent can come very close to that of a legal parent. The main argument in favor of supporting tri-parenting arrangements is that children generally benefit from having multiple sources of support. The contrary argument, of course, is that there are also more opportunities for conflict down the road.

If you need to protect your relationship with a child or maximize your parental rights, contact us for an initial consultation with an experienced child custody attorney. Secure your family’s future. Call today: 888-888-0919.