When it comes to family, the only constant is change. Throughout one’s life, an individual’s family is always changing—people form unions, breakups occur, family members pass, and children are born. Likewise, the manner in which people choose to form families is ever changing. In the legal arena of family law, the courts are constantly faced with the changing landscape of families and relationships and are asking the question, “How do you define a family?”

The New Jersey courts have wrestled with this question over the years, and many questions arise when dealing with the families formed by members of the LGBTQ community. Same-sex couples and LGBTQ individuals often rely on the process of adoption or the use of assisted reproductive technology to form families, and these formation techniques often have legal consequences and implications. Other LGBTQ individuals and couples are forming families in less traditional ways, which creates unique and challenging issues for the courts to address.

In a published trial court opinion last year, the court grappled with the concept of a tri-parenting arrangement between a same-sex couple and their female friend, and ultimately awarded joint custody to the three parents.

In the case of D.G. and S.H. v. K.S., the court addressed issues of custody, relocation and support between a same-sex married couple and their female friend, who agreed to conceive and jointly raise a child in a tri-parenting arrangement. D.G. and his husband, S.H., agreed to raise a child together with their mutual friend, K.S. The parties agreed to use D.G.’s sperm and K.S.’s egg to conceive the child, and the child was given S.H.’s last name. In anticipation of the child’s birth, the parties took parenting classes, held separate baby showers, and prepared their homes for the child to reside with all three parties.

After the child was born, the same-sex couple moved into K.S.’s home for the summer, and the three adults each participated in the parenting tasks. S.H. (who was not biologically related to the child) was a teacher who did not work during the summer, so he was able to take on many of the day-to-day caretaker responsibilities. At the end of the summer, the two men moved to a rental home near K.S. so that the three parties could share parenting responsibilities. The parties continued to amicably co-parent the child for years and effectively navigated the sharing of parenting time and caretaking functions.

The “tri-parenting” arrangement broke down, however, after K.S. announced that she planned to marry and move to California with the child. The parties made efforts to resolve the custody and parenting time among themselves, but were unable to come to an agreement. D.G. and S.H. filed a complaint seeking legal and physical custody of the child. The couple argued in the complaint that S.H. (who was not biologically related to the child) was a “psychological parent” of the child.

When an adult seeks custody and parenting time with a child to whom he or she is not the biological or adoptive parent, courts will only recognize a parent-child relationship if “extraordinary circumstances” exist. The courts have found that extraordinary circumstances exist when the third-party adult is found to be a “psychological parent” of the child. Such a determination recognizes that children have a strong interest in maintaining the ties that connect them to adults who love and provide for them.

Four essential requirements must be satisfied for a third party to be considered a psychological parent:

  • The legal parent must consent to and foster the relationship between the third party and the child;
  • The third party must have lived with the child;
  • The third party must perform parental functions for the child to a significant degree; and
  • Most important, a parent-child bond must be forged.

The court heard the case over 19 days to determine whether S.H. was a psychological parent and to decide how custody of the child should be arranged. After detailing the facts at length, the court found that S.H. was the child’s psychological parent. The court based its decision on the fact that the biological parents consented to and fostered a parent-like relationship between S.H. and the child; that the three parties intended to form parent-like relationships with the child and co-parent together; and that since the child’s birth, S.H. had taken on the role of a caretaker and established a significant bond with the child.

After determining that S.H. was a psychological parent, the court turned to the issue of legal and residential custody for the three parties. Once it is determined that a party who is not biologically related to the child is a psychological parent, that party stands in parity with the biological parents with regard to a custody evaluation. The court looked to the “best interests of the child” standard and evaluated the factors set forth in N.J.S.A. 9:2-4(c). In doing so, the court found that D.G. and S.H. would share equal legal and residential custody of the child with K.S. The child would live primarily with D.G. and S.H., and would be subject to substantial parenting time with K.S.

Even though S.H. was found to be a psychological parent and was awarded equal custody alongside the child’s legal parents, the court stopped short of finding that S.H. was himself a legal parent. According to New Jersey’s Parentage Act (N.J.S.A 9:17-39), legal parentage can be conferred upon a party in one of three ways: “genetic contribution, gestational primacy, or adoption.” S.H. was obviously not a gestational carrier, not biologically related to the child, and did not seek a formal adoption of the child. Therefore, the court found that it did not have jurisdiction under the Parentage Act to deem S.H. a legal parent. Still, the ruling essentially approved of the tri-parenting arrangement by granting custodial rights to S.H.

New Jersey is not the only state to recognize a tri-parenting arrangement. California and Maine have passed laws that specifically permit courts to determine that a child may have more than one legal parent. In other states, such as Oregon, Washington and Massachusetts, courts have recognized third-parent adoptions in certain cases.

Most recently, in March 2017 in New York, an intimate relationship among a husband, his wife and a female neighbor led to the state’s first known “tri-custody” ruling. In this case, the husband and wife began a polyamorous relationship with their female neighbor. The three partners considered themselves a unified family and decided together to have and raise a child. Since the wife was unable to bear children, the parties decided that the husband and the friend would conceive the child.

After the child was born, the parties shared caretaking functions for their son. This relationship eventually broke down, however, and the wife and neighbor moved out together. The husband instituted a divorce action against the wife and a custody action seeking a determination that the neighbor was not to be considered a parent to the child.

Just as in the recent New Jersey case, the New York trial court granted the parties shared custody, citing the best interest of “a well-adjusted 10-year-old boy who loves his father and his two mothers,” effectively permitting a three-person parenting situation.

In each of these cases, the intention of the parties to conceive and raise a child together in a tri-parenting model was of paramount importance to the court in determining custody. Intention alone, however, is not enough to overcome the exceptional circumstances standard in New Jersey. The parties must not only intend to raise the child in this less traditional arrangement, but also follow through with the sharing of day-to-day custodial tasks.

The ever-changing face of families in our society will continue to grow and expand. Courts are increasingly willing to look past the heteronormative concept that a family consists solely of one man, one woman, and their biological children. Every family is unique, and experienced, informed advocacy can be all the difference when, and if, a court addresses a family’s individual circumstances.•

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