Psychological Parents and Third Party Custody

New Jersey law allows persons other than the biological or adoptive parents to gain custody of a child in certain circumstances. In fact, any person may apply for custody if the parent is alleged to be unfit, such as in cases of abandonment, gross misconduct, or any other exceptional circumstances. In a proceeding to award custody to a third party where the parent contests the custody, a legal presumption exists in favor of the parent, but that presumption can be overcome, or rebutted, if the third party can prove he or she has become the “psychological parent” of the child.

The New Jersey courts have fashioned a four-part test to determine whether the person seeking custody qualifies as the child’s psychological parent. Those factors are:

  1. The parent consented to and fostered the parent-like relationship between the child and the third party
  2. The child and the third party lived together in the same household
  3. The third-party assumed the obligations of parenthood by taking significant responsibility for the child’s care, education and development
  4. The third-party adopted a parental role long enough to have a bonded, dependent relationship with the child

Passing the test puts the third party on equal footing with the legal parent, and the third party has an equal right to custody and visitation if it is in the best interests of the child, except that a fit parent has a superior right to custody.

Although any party could be considered a psychological parent, the situation most often arises when grandparents take time raising the children, or when a child is raised by a same-sex couple where one of the partners is the biological parent and the other is not. In fact, the case establishing the four-prong test above involved two women who were in a nearly four-year relationship, during which one of the women became pregnant with twins via artificial insemination.

The couple later purchased a house together and were “married” in a commitment ceremony in 1995. The couple had been taking steps for the non-biological partner to adopt the children, but the couple ended their relationship before any adoption took place. The appeals court found that the non-biological parent had a bonded relationship with the children and met the test set out for a psychological parent. Although the court denied joint custody on the facts of this particular case, the court did order that the psychological parent was entitled to visitation.