If you've been part of a blended family for some time, you may feel like a parent to your stepchildren. And if you're facing a divorce, you probably worry that your ex will cut you off from the children you love just because you aren't a biological parent. Family isn't always determined simply by birth. We all want more people who love our children in their lives, and sometimes family isn't necessarily determined by birth. Unfortunately, stepparents don't always have many parental rights during a custody dispute without a legal adoption. However, if cutting off your relationship with your stepchild would be akin to the absence of a parent, New Jersey courts may allow custody and visitation.
Best Interests of the Child
During a typical custody case involving two biological parents, New Jersey courts make decisions about primary physical and legal custody by determining the “best interests of the child.” See NJ Rev Stat § 9:2-4A (2016). As part of this analysis, the court will look at:
- The needs of the child,
- The parents' ability to cooperate and communicate in matters related to the child,
- Any history of domestic violence,
- The relationship and interaction of the child with its parents and siblings,
- The stability of the home environment,
- The safety of the child and the other parent from physical abuse,
- The quality and continuity of the child's education,
- The preference of the child if they are old enough and mature enough to form a well-reasoned decision,
- The fitness of the parents,
- The parents' employment responsibilities,
- The geographical proximity of the parents' homes,
- The age and number of the children,
- The amount and quality of the time spent with the children before separation,
- The parents' willingness to accept custody and any history of unwillingness to share parenting time, absent reluctance based on substantiated abuse.
Who Else Can Request Custody in New Jersey?
Under New Jersey law, no specific statute permits unrelated third parties to request custody or visitation. In New Jersey, the court's primary focus will be to determine custody for the biological or legal parents. However, grandparents and siblings can request visitation under certain circumstances. See NJ Rev Stat § 9:2-7.1 (2013).
If a stepparent has a biological sibling to a stepchild, the child may be able to obtain a court order for visitation if they can show by a preponderance of the evidence that it's in the best interests of the stepchild:
1.a. A grandparent or any sibling of a child residing in this State may make application before the Superior Court, in accordance with the Rules of Court, for an order for visitation. It shall be the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best interests of the child.
b. In making a determination on an application filed pursuant to this section, the court shall consider the following factors:
(1) The relationship between the child and the applicant;
(2) The relationship between each of the child's parents or the person with whom the child is residing and the applicant;
(3) The time which has elapsed since the child last had contact with the applicant;
(4) The effect that such visitation will have on the relationship between the child and the child's parents or the person with whom the child is residing;
(5) If the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;
(6) The good faith of the applicant in filing the application;
(7) Any history of physical, emotional or sexual abuse or neglect by the applicant; and
(8) Any other factor relevant to the best interests of the child.
c. With regard to any application made pursuant to this section, it shall be prima facie evidence that visitation is in the child's best interest if the applicant had, in the past, been a full-time caretaker for the child.
Psychological Parents
A stepparent may have “psychological parent” status in some circumstances, allowing them to seek custody or visitation. When the court looks at whether a “psychological parent” or stepparent should have visitation, it doesn't immediately use the “best interests of the child” standard typically used in custody cases. Instead, New Jersey courts will apply a higher standard to the review. A stepparent must show that terminating visitation and a relationship with the child would harm the child.
In the case of K.A.F. v. D.L.M., the New Jersey Court of Appeals tackled the issue of stepparent custody and visitation rights. See 96 A.3d 975 (N.J. Ct. App. 2014). In that case, a stepparent, D.L.M. filed for joint custody and reasonable visitation of a stepchild after the end of a domestic partnership of six years. For several years after that, D.L.M. enjoyed regular visitation, including weekly overnight stays. The family court denied D.L.M.'s request. On appeal, the Jew Jersey Court of Appeals reversed.
The parents argued that they did not both consent or encourage D.L.M. to form a psychological parent bond with their child; the appellate court dismissed the argument stating that there's no basis in law or policy to require that both parents consent to a parental-like bond forming between a stepparent and child.
The appellate court agreed that “a natural parent's right to the care, custody, and control of his or her child is a “fundamental right to parental autonomy,” and is recognized as “a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.” However, the court held that “[p]sychological parent cases […] constitute a subset of ‘exceptional circumstances' cases, in recognition of children's ‘strong interest in maintaining the ties that connect them to adults who love and provide for them.' That interest, for constitutional as well as social purposes, lies in the emotional bonds that develop between family members as a result of shared daily life.”
The appellate court went on to describe a two-step analysis courts must perform. First, to determine whether a stepparent is unfit or there are “exceptional circumstances.” Next, the court described the four factors a court should use to determine if a “psychological parent” bond existed between a stepparent and child.
Psychological Parent Factors
Now, for a New Jersey court to determine that a stepparent is a “psychological parent,” the stepparent must show:
- The legal parent consented to or encouraged the parent-like relationship between the stepparent and child,
- The stepparent and the child lived in the same household,
- The stepparent assumed significant parental obligations by taking responsibility for the child's care, education, and development without the expectation of financial compensation, and
- The stepparent was in a parental role long enough to establish a bonded, dependent relationship that is parental in nature.
After a stepparent establishes status as a psychological parent, a biological parent can't unilaterally terminate the relationship. At this point, a New Jersey court can step in and allocate custody and visitation time between the legal and psychological parents using the “best interests of the child” standard. To deny a psychological parent custody or visitation, the legal parent must show by clear and convincing evidence that:
- The psychological parent is unfit, or
- Granting parenting time would cause physical or emotional harm to the child.
Do Stepparents Have Child Support Obligations?
Stepparents do not typically have child support obligations in New Jersey, even if a court finds them to have psychological parent status, awarding joint custody or visitation. In 2016, a New Jersey trial court addressed a “tri-parenting” situation voluntarily created by three friends, one woman, and two male partners, one of whom was the child's biological father. The three “parents” had clearly all intended to co-parent equally, but when the mother sought to move from the state with the child, the parents involved the courts. The trial court noted there is no option in New Jersey for three legal parents, unlike states like California, where there is such legislation. See D.G. v. K.S., 133 A.3d 703 (N.J. Super. 2015).
However, in this case, the New Jersey court ruled that the non-biological parent was a psychological parent and placed him on par with the two legal parents concerning custody and visitation. The court did not order the psychological parent to pay child support because New Jersey courts can only require financial support from legal parents. However, the psychological court voluntarily placed himself in the child support equation and voluntarily paid the support. Despite the results of the D.G. case, there is currently no legal mechanism to require child support payments from a stepparent or psychological parent.
Hire an Experienced New Jersey Family Law Attorney
If you are a New Jersey stepparent heading towards separation or divorce and you're concerned about possible custody and visitation rights, you need the guidance of an experienced New Jersey family law attorney. Attorney Joseph D. Lento has many years of experience helping New Jersey families navigate complex custody and visitation issues. He can help you too. Contact the Lento Law Firm online today, or call at 888-535-3686.
