Nontraditional Custody in New Jersey

An increasing number of children live in nontraditional families. As of 2023, 64 percent of children live with two married parents compared to 88 percent in 1970. Changes in social norms mean that more people are raising children outside of marriage or in a same-sex marriage.

Technology has also altered what custody means. Divorcing couples may now be discussing what happens to fertilized embryos when they divorce.

New Jersey law has responded to these changes to expand beyond traditional definitions and views of what custody involves. Whether a child has been raised in a traditional or nontraditional home, the central issue remains the same: What custody agreement is in a child's best interests?

New Jersey also recognizes that children can form vital bonds with relatives beyond their parents. The state allows some relatives to petition for custody or visitation of children.

That a family is nontraditional does not lessen the bounds a child can form with parents, guardians, and other adults in their lives. While the law recognizes these relationships, determining custody for nontraditional families may be more challenging or present unique issues.

The Lento Family Law Team assists families throughout New Jersey in navigating the child custody process. We appreciate that each family is different and requires a custody agreement that conforms to their lives. You can call us or fill out our online form.

Adoption and Legal Custody

Once an adult or couple has finalized an adoption, the law will not treat that child any differently than a biological child. Issues can arise when one parent has not formally adopted a child.

When a parent marries a new partner, marriage does not affect legal custody of any children under 18 years old. Absent adoption, the new spouse will not be considered a child's parent. This may affect benefits such as whether a child qualifies for the new spouse's health insurance and inheritance rights. Stepparents may also be limited in their ability to make decisions for a child or request custody or visitation in the event of a divorce.

One rapidly evolving area of law is surrogacy. Countries and states can have drastically different laws about the process. When individuals or couples choose to become parents via surrogacy, they should plan to meet with an attorney to ensure they will not encounter problems about legal custody or adoption either now or in the future.

When a couple is splitting up, and only one parent has legal custody, the other parent may still request some level of custody or visitation. That parent will want to show that they stand in loco parentis. Essentially, they want to show that they have been acting as a parent even if they did not have the role in a legal sense.

Same-Sex Couples

When same-sex couples divorce, custody matters hinge on whether or not both parents adopt and/or have legal custody of the children. When both adults have adopted the children, custody arrangements will proceed similarly to any divorce proceeding.

When only one parent has legal custody of the children, the other spouse needs to decide if they want to petition for continued custody or visitation. If a parent does not have legal custody of a child and wants to petition for custody, they will need to argue that the stand in loco parentis. This means that an adult, while having no legal tie to the child, otherwise acted as a parent.

Non-Dissolution and Unmarried Parents

According to the 2020 Census, approximately 7 percent of children in the United States live in a household with unmarried parents. When a cohabiting couple breaks up, they face a different set of issues than divorcing spouses. In New Jersey, custody cases that are unrelated to divorce are known as non-dissolution cases.

Non-dissolution cases can handle the following topics:

  • Child custody
  • Parenting time and visitation
  • Establishing paternity
  • Child support
  • Spousal support
  • Health insurance coverage

Parents should be aware of two important details about non-dissolution cases. One is that grandparents and adult siblings may also file for custody or visitation under New Jersey law. Married parents who have not filed for divorce may also file under these laws. Non-dissolution cases can be especially important for fathers who need to establish paternity.

That parents were not married should not affect issues such as custody or child support as those matters are separate from marriage. The focus will still be on what's in a child's best interests.


One emerging area of custody law is what happens to fertilized embryos when a couple divorces. Just as the ability to create embryos outside the human body is relatively recent, so too are the laws about the process. The laws on this issue continue to evolve, which is one reason why a divorcing spouse should consult with an attorney when the couple has fertilized embryos.

Once a child is born from an IVF procedure, that child is no different than any other child in the law or with custody issues. If a same-sex couple uses IVF, the focus is on whether both parents adopted the child and not whether the child was conceived using IVF. The questions about IVF deal with what happens to fertilized embryos and potentially intersect with issues above and beyond the law.

A 2001 New Jersey Supreme Court case discussed rights over embryos when a couple divorces. In this case, the Court ruled that even once embryos were fertilized, an adult had the right to decide not to become a parent. In this case, the other former spouse was not infertile and was not deprived of his ability to become a parent by different means.

Couples can enter into pre-embryo disposition agreements, although both parties do have the right to later change their mind. If a couple cannot agree, a court may make the decision.

Protect Your Parental Rights

That a parent chooses to raise a child in a nontraditional family or situation has no bearing on their parenting ability. New Jersey recognizes that children benefit from relationships with their parents and adults who have assumed a parental role, even if not the legal responsibility.

For divorcing spouses fighting over-fertilized embryos, emotions may run high. Both parties may have compelling reasons for their stance. Determining whose rights take precedence can be difficult.

Whatever a child's home or family situation, custody decisions should focus on providing a child with stability in their relationships and safety in their daily life. The Lento Law Firm Family Law Team helps couples and families navigate new and nontraditional questions of custody. Call us or fill out our online form to learn more about how we can assist you.

Contact a Family Law Attorney Today!

Attorney Joseph D. Lento has more than a decade of experience practicing Family Law in New Jersey. If you are having any uncertainties about what the future may hold for you and your family, contact our offices today. Family Law Attorney Joseph Lento will go above and beyond the needs for any client and fight for what is fair.

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