“What is a family?” is not an easy question to answer in the 21st Century. In our courts, it’s constantly evolving and creating new issues of contention. On February 5, 2016, the New Jersey Supreme Court had to address in D.G and S.H. v. K.S. the idea of a “tri-parenting arrangement.”
The three parties to that case were the biological father (“D.G.”), the biological father’s husband (“S.H.”), and their friend, the biological mother (“K.S.”). The three agreed that they would use D.G.’s sperm and K.S.’s egg, that they would give the child S.H.’s surname, and that they would raise the child jointly. To prepare for the child, the parties all took baby classes, had two baby showers, and bought double the amount of baby items to prepare the child for her two homes.
In 2009, K.S. gave birth to a daughter, and D.G. and S.H. moved into K.S’s home in Point Pleasant, New Jersey. D.G. ran a business at the Jersey Shore, K.S. returned to her job at her family’s restaurant, and S.H. was a high-school teacher in New York City. Since S.H. would have a summer break, he took on most of the parenting duties. Following this so far?
At the end of the summer, to be closer to K.S., D.G. and S.H. rented a home in Point Pleasant. Parenting time eventually fluctuated, but it still remained successful and agreeable to all. While D.G. and S.H. took on more parenting time responsibilities in the summer because of K.S’s job responsibilities, K.S. took on more parenting time responsibilities in the winter, including taking the child to Costa Rica where she owned a home. In 2012, Superstorm Sandy destroyed D.G. and S.H.’s Point Pleasant home, so they began having weekend parenting time in New York City. Although all three discussed the practicalities of how this arrangement would work, they did not sign a written agreement outlining the legal rights of each of them.
This co-parenting arrangement worked until March 2013, when K.S. wished to relocate with the child because she fell in love with her neighbor in Costa Rica, who lived in California. After learning about this, D.G. and S.H. requested a written parenting-time proposal from K.S., but she rejected the proposal.
The couple filed in the Family Court in Ocean County seeking to establish that S.H. was the child’s “psychological” and legal parent, for legal and physical custody of the child, and for parenting time. K.S. filed a countersuit seeking to establish a legal custodial relationship between the parties with physical custody to her, to establish a parenting time arrangement, child support and medical coverage, and permission to relocate with the child to California.
In deciding whether S.H. was the psychological parent of the child, the Court relied on the 4 part “exceptional circumstances” test:
Did the biological or adoptive parent agree to, and foster, the applicant’s formation and establishment of a parent-like relationship with the child – the legal parent must have fostered the formation of the parental relationship between the third party and the child?
Did the applicant and the child live together in the same household?
Did the applicant assume the obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing toward the child’s support without expectation of financial compensation [a petitioner’s contribution to a child’s support need not be monetary]?
Was the petitioner in a parental role for a length of time sufficient to have established with the child a bonding and dependent relationship that is parental in nature?
It decided that S.H. met all four parts of this test. D.G. and S.H. were married and both D.G. and K.S. agreed to and fostered a parent relationship between S.H. and the child. The parties all lived together for a time and both households shared living time with the child. S.H. assumed the obligations of parenthood, including preparing the child for school, physically taking her to school, bathing, dressing, brushing her hair and teeth, and taking her to dental visits. Also, he was involved in her early education by completing her application for admission to preschool, taking her there in the mornings, and picking her up in the afternoons.
Finally, the Court said that over 6 years was a length sufficient enough for S.H. to have established a bond with the child that was parental in nature. So, the Court decided that S.H. was to be considered the psychological parent of the child. It then conducted an analysis under New Jersey’s Children’s Law and ultimately concluded that D.G., S.H. and K.S. should have equal legal and residential custody of the child with a 50/50 parenting time schedule.
Although it may have been a partial victory for S.H., the Court could not grant him legal parentage because neither the law in this state does not allow for a person to become a legal parent outside of adoption. Kieu-Nhi Le, Rutgers School of Law Newark candidate for a JD degree in May 2016. She is the Managing Business Editor of the Rutgers Computer and Technology Law Journal collaborated with me on this blog.