Let’s Talk About… Tri-Parenting In New Jersey
October 8, 2020
BY: Lesnevich, Marzano-Lesnevich, O'Cathain & O'Cathain
The idea of a “nuclear family” has vastly changed in the last several years.
Families are formed not only by marriages, but also by separations, divorces, same-sex couples, adoption, and reproductive technologies. These “new” ways of creating families have changed the considerations that the Family Court in New Jersey must govern. Changing legislation and case law must change with the times, and New Jersey has not yet caught up.
In New Jersey, the Uniform Parentage Act (“UPA”) establishes the parent-child relationship, or the legal relationship between a child and the child’s natural or adoptive parents, between a child and the child’s co-parents, or between the child and the child’s intended parents pursuant to a gestational carrier agreement as to what rights, privileges, duties, and obligations these people have relative to each other. Legal parentage may be established in only the following ways under the Parentage Act: genetic contribution, gestational primacy, or adoption. But what happens if your family does not fit into those three distinct categories?
In a recent article in The Atlantic, David Jay describes how he is part of a three-parent family with married couple Avary Kent and Zeke Hausfather. Jay is the biological father to Octavia, and Jay lives with Kent and Hausfather. Jay, who identifies as asexual, always knew that he wanted a child, but although he did not want a romantic relationship with his co-parent, he did want a co-parent to raise his child. Kent and Hausfather felt a strong connection with Jay and agreed that they wanted him to be involved when they began talking about starting a family. The family lives in California where the state recognizes three-parent adoptions. Once Therefore, Jay, Kent, and Hausfather are all legal parents to Octavia and share the same rights and responsibilities as her parents.
Other states recognize three-parent adoptions in addition to California: Maine, Washington, Rhode Island, and Vermont. Where does New Jersey fall on this issue?
The Psychological / De Facto Parent
If you do not fall into any of the three above-mentioned categories, you may be able to be awarded custodial rights by applying to be recognized as the child’s psychological or de facto parent. In cases of a psychological or de facto parent, the Court will consider what the applicant’s role has been in the child’s life, what role the biological parents consented to, whether the child and applicant ever lived in the same household together, and if there is a bonded, dependent parent-child type of relationship between the child and the applicant. If the Court deemed that the applicant meets these four requirements, the applicant will be deemed a psychological parent and obtain the same custodial rights and responsibilities as a biological or adoptive parent.
In D.G. and S.H. v. K.S., the family Court in Ocean County held that a biological father’s same sex spouse was the child’s a psychological parent. K.S. is the child’s biological mother, D.G. is the child’s biological father, and S.H. is the father’s spouse. In this particular case, all three parties agreed to have a child together and create a tri-parenting arrangement. They agreed to use D.G.’s sperm and impregnant K.S. using an at-home method. When K.S. ultimately became pregnant, all parties were involved: there were two baby showers, a joint registry (with two of everything in preparation for the child to have two homes), and all parties participated in baby classes. When the child was born, again, all parties were involved, and were able to successfully tri-parent together as planned. When the child was about four years old, K.S. fell in love and desired to relocate from New Jersey to California with the child. The parties attempted to negotiate a parenting plan in consideration of this relocation, but were unable to do so and they filed in Court. Ultimately, the Court found that S.H. was the child’s psychological parent after evaluating all of the statutory factors set forth in the New Jersey custody statute, N.J.S.A. 9:2-4(c) and considering K.S.’s last minute consent to the finding. Furthermore, the Court held that K.S. was not permitted to relocate the child to California, but denied S.H.’s request to establish legal parentage over the child. Although the Court did rule that all three parents were to share joint legal custody and that the Plaintiffs (D.G. and S.H.) and Defendant (K.S.) would share 50% residential custody. Despite this, the Court did not order S.H. to pay child support (despite his willingness to do so) because the biological parents of the child were available to pay same – in the fact, the Court ordered that neither party should pay child support to the other.
In the D.G. and S.H. v. K.S. case, the parents made a tri-parenting agreement, and they intended to be bound by this agreement until K.S. decided to relocate to California with the child. Even when K.S. agreed that S.H. was a psychological parent, the Court made an independent determination as to S.H.’s status as a psychological parent before ruling on the relocation issue. In New Jersey, a tri-parenting agreement does not automatically bestow custodial rights on the psychological parent.
As the make-up of families continues to change, hopefully the legal landscape will change to be more inclusive and conscientious of the problems facing today’s families.