Tri-Parenting: Three's Company or Three's a Crowd?

New Jersey Law Provides for Two Legal Parents Only

New Jersey follows a two-parent rule. While the state's Parentage Act can potentially grant a presumption of parenthood to more than two people, conflicting presumptions must be resolved. N.J.S.A. § 9:17-43. Similarly, a child cannot be adopted in New Jersey without first terminating the rights of the birth parents. Matter of Baby M., 537 A. 2d 1227 (N.J. Sup. Ct. 1988). Over time, however, the courts and the legislature have accepted limited encroachments upon this two-parent rule. These include the “psychological parent” doctrine, discussed in depth herein, as well as a form of legal guardianship that allows “kinship caregivers” to become the primary custodians of a child without terminating the rights of the parents. N.J.S.A. § 3B:12A-1-6.

A Minority of States Now Allow More Than Two Legal Parents

At least one state, Louisiana, has long recognized dual paternity between presumptive and biological fathers. TD v. MMM, 730 So. 2d 873 (La. 1999). A handful of other states, including Alaska and Oregon, have permitted third-parent adoptions in limited circumstances. See Emily C. Patt, Second Parent Adoption: When Crossing the Marital Barrier Is in a Child's Best Interests, 3 Berkeley Women's L.J. 96, 131-32 (1987) (discussing In re Adoption of A.O.L., No. I-JU-85-25 (Alaska Super. Ct. July 23, 1985)); Oregon Third Parent Adoption. YouTube video, 2:05. Posted by Sean Kane, July 1, 2011.

In addition, at least two states, Delaware (Del. Code tit. 13 §8-201) and Maine (Me. Rev. Stat. tit. 19A § 1891), have recently allowed “de-facto parents” (a term roughly synonymous with “psychological parents”) to gain legal parental status without affecting the rights of the existing parents. California also recently passed a law specifically allowing a child to have more than two legal parents. The California statute states that courts are not required to resolve competing claims to parentage under the California Parentage Act if it would be detrimental to a child to do so. CA Fam. Code § 7612(c).

These disparate court decisions and legislative acts show that states are gradually addressing new factual scenarios as they arise. California changed its law in direct response to In re MC, 123 Cal.Rptr.3d 856 (Cal. Ct. App. 2011), a case where a biological mother who was married to a woman conceived her child during an interim relationship with a man. The biological father was willing to step up as a legal parent, but was essentially pushed out by the two women. Due to a tragic series of events, both women became unable to care for the child. The court found that all three parties were presumptive or quasi-presumptive parents, but stated that the biological father could not be awarded primary custody until the court resolved which of the three parties were the child's two legal parents.

Issues in Reproductive Technology and Legal Parenthood

Courts and lawmakers, adapting to advances in assisted reproductive technology, have sometimes struggled to resolve which two people should be treated as a child's legal parents. In some states, including New Jersey, male-male partners, as well as female-male partners where the woman cannot carry a child, face greater legal obstacles than female-female partners, or female-male partners where the male is infertile. The two latter pair-ups have the option of pursuing artificial insemination.

Under New Jersey law, the husband of a woman who is artificially inseminated with donated semen under medical supervision is treated as the child's natural parent. The donor has no rights unless he has entered into a written contract to the contrary with the mother. N.J.S.A. 9:17-44. New Jersey has extended this treatment to female-female married, civil union, and registered domestic partners. The June 26 decision of the United States Supreme Court in Pavan v. Smith, 582 U. S. ___ (2017) clarifies that to do otherwise would contravene the equal treatment mandated by Obergefell v. Hodges, 576 U. S. ___ (2015).

Male-male couples, as well as female-male couples where the woman cannot carry a child, have an additional biological hurdle to overcome, as they require a surrogate to bear a child. In New Jersey, they also face an additional legal hurdle, as the state does not recognize surrogacy contracts, even with “gestational surrogates” who have no genetic relationship to the child. The birth mother retains parental rights unless she signs them away at least three days after a child's birth. N.J.S.A. 9:3-41(e); In re TJS, 54 A. 3d 263 (N.J. Sup. Ct. 2012). By contrast, in states like California where gestational surrogacy contracts are enforceable, both intended parents can become legal parents before a child's birth. Cal Family Code § 7962.

New Jersey surrogacy laws are among the most restrictive in the country, but this may soon change. Since 2012, a bill permitting and controlling gestational surrogacy contracts has passed both the Senate and the Assembly twice, only to be vetoed both times by Governor Chris Christie. The newest iteration of the bill, S1238, recently passed the Senate for the third time.

Tri-Parenting By Design

While parental rights cases usually result from conflict between legal parents and third parties, in a more recent development, some same-sex couples have been intentionally forming three-parent families with a person of the opposite sex. Such families generally require court intervention only when something goes wrong. Unfortunately, as with any family, the best intentions do not necessarily prevent problems. A court must then sort out the parents' rights.

In the 2015 New Jersey case of D.G. v. K.S., 133 A3d 703 (N.J. Super. Ct., Ch. Div. 2015), a biological father (DG), biological mother (KS), and DG's male spouse (SH), decided to have a child together and equally co-parent that child. Things went well for the first few years, until the mother wanted to move to California with the child. The court then determined that DG and KS were both legal parents, and that SH was not a legal parent but nevertheless qualified as a “psychological parent” who stood on equal ground with the two legal parents with respect to questions of custody and visitation. The court awarded joint legal and physical custody to all three parents, effectively blocking the mother from moving with the child.

New Jersey is not the only state to order such an unusual custody arrangement. A judge in New York recently divided custody among three people who had conceived a child together during a triadic romantic relationship. The court found that both biological parents had fostered the tri-parenting arrangement and that ordering anything other than “tri-custody” would be devastating to the child. Dawn M. v Michael M., No. 00109/2011 (NY Supreme Court, Suffolk County, March 8, 2017).

The Psychological Parent Doctrine in New Jersey

In New Jersey, the concept of a “psychological parent” evolved out of the NJ Supreme Court's decision that a child who had spent the first two and a half years of his life in a foster home faced a serious risk of psychological harm if removed from that home. Sorentino v. Family & Children's Society of Elizabeth, 367 A. 2d 1168 (N.J. 1976). The Sorentino court held that such a risk of harm could transcend even the custody rights of the otherwise fit parents. Eventually, New Jersey adopted a four-prong psychological parent test based on a Wisconsin case, In Re Custody of HSH-K, 533 N.W.2d 419 (Wis. 1995). This test was refined in leading New Jersey cases such as A.F. v. D.L.P., 771 A.2d 692 (N.J. Super. Ct. App. Div. 2001), and V.C. v. M.J.B., 748 A.2d 539 (N.J. 2000). It requires the following:

1. At least one legal parent must have consented to and encouraged the relationship between the third party and the child. Consent need not be explicit. For example, a single parent may consent by encouraging a parent-child relationship between a child and a step-parent.

2. The third party must generally have lived with the child and the legal parent as a family in the same household. If the parties maintained two residences but held themselves out to the world as a family unit, this prong might still be satisfied.

3. The third party must have assumed the obligations of parenthood, taking on significant responsibilities for the child's care, education and development. Examples include providing food, clothing and shelter for the child without the expectation of reimbursement; taking the child to the doctor or to school and extra-curricular activities; and sharing important occasions like birthdays, holidays and vacations. Financial contributions can be a factor, but these are not required, nor are they given more weight than other factors. Courts consider the overall nature, quality and extent of the functions undertaken by the third party.

4. The third party must establish the existence of a parent-child attachment bond. This may require expert psychological testimony to demonstrate that the child relies upon the third party for emotional support, comfort, protection and companionship. The duration of the relationship is important, but there is no minimum time required; the quality of the bond is what matters.

If this four-prong test is satisfied, the psychological parent stands in parity with a legal parent regarding custody and visitation. The division of parenting time and parental responsibilities between them, however, must be determined according to the child's best interests.

Differences Between Legal and Psychological Parents

Unless the legislature or the courts of a particular state have explicitly stated otherwise, the rights and responsibilities of a psychological parent are limited to those related to custody and visitation and end when a child reaches adulthood. In New Jersey, there is no automatic responsibility for a psychological parent to pay child support. This does not mean that a psychological parent can never be held responsible for financially supporting a child, but any such responsibility would be based upon the equitable theory of estoppel. It does mean that a psychological parent who voluntarily contributes financially cannot arbitrarily stop doing so if that would cause the child to suffer financial harm. Miller v. Miller, 478 A.2d 351 (N.J. Sup. Ct. 1984).

In Miller, the court held a stepfather responsible for providing ongoing financial support for his stepchildren, because he had not only assumed sole financial responsibility for seven years, but had also actively discouraged the children's legal father from visiting them or sending them money. Estoppel is not applicable, however, if there are two legal parents available to provide financial support. See DG v. KS, 133 A.3d at 727. In next month's issue, we conclude this discussion with a look at objections to the psychological parent doctrine, and analysis of how to ensure that intended parents have parental rights.

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Bari Weinberger, a member of The Matrimonial Strategist's Board of Editors, is the founder and a managing partner of the Weinberger Divorce & Family Law Group.

Laws pertaining to legal parentage have changed frequently in recent years as states have attempted to keep pace with the evolving configurations of modern-day families. Major contributors to this process — including rapid advancements in assisted reproductive technology and improved rights for same-sex parents — have expanded our definitions of family and parenthood. Still, what about the related issue of how many recognized parents a child can have?

In many ways, the concept of “tri-parenting,” meaning a family situation in which a child might have more than two parents, is not entirely new. For example, there have always been occasional conflicts between biological fathers and husbands of biological mothers, as the latter are considered “presumptive fathers” in most states. Foster parents, step-parents, and others who step in to act as parents, have also often fought to gain or preserve a legal role in a child's life.

Accepting that more than two people at one time should be recognized as a child's legal parent, however, has been slower to gain traction. Why is this, and what can we as matrimonial and family law attorneys do to help our clients with tri-parenting concerns find workable solutions for their families?

New Jersey Law Provides for Two Legal Parents Only

New Jersey follows a two-parent rule. While the state's Parentage Act can potentially grant a presumption of parenthood to more than two people, conflicting presumptions must be resolved. N.J.S.A. § 9:17-43. Similarly, a child cannot be adopted in New Jersey without first terminating the rights of the birth parents. Matter of Baby M., 537 A. 2d 1227 (N.J. Sup. Ct. 1988). Over time, however, the courts and the legislature have accepted limited encroachments upon this two-parent rule. These include the “psychological parent” doctrine, discussed in depth herein, as well as a form of legal guardianship that allows “kinship caregivers” to become the primary custodians of a child without terminating the rights of the parents. N.J.S.A. § 3B:12A-1-6.

A Minority of States Now Allow More Than Two Legal Parents

At least one state, Louisiana, has long recognized dual paternity between presumptive and biological fathers. TD v. MMM , 730 So. 2d 873 (La. 1999). A handful of other states, including Alaska and Oregon, have permitted third-parent adoptions in limited circumstances. See Emily C. Patt, Second Parent Adoption: When Crossing the Marital Barrier Is in a Child's Best Interests, 3 Berkeley Women's L.J. 96, 131-32 (1987) (discussing In re Adoption of A.O.L., No. I-JU-85-25 (Alaska Super. Ct. July 23, 1985)); Oregon Third Parent Adoption. YouTube video, 2:05. Posted by Sean Kane, July 1, 2011.

In addition, at least two states, Delaware (Del. Code tit. 13 §8-201) and Maine (Me. Rev. Stat. tit. 19A § 1891), have recently allowed “de-facto parents” (a term roughly synonymous with “psychological parents”) to gain legal parental status without affecting the rights of the existing parents. California also recently passed a law specifically allowing a child to have more than two legal parents. The California statute states that courts are not required to resolve competing claims to parentage under the California Parentage Act if it would be detrimental to a child to do so. CA Fam. Code § 7612(c).

These disparate court decisions and legislative acts show that states are gradually addressing new factual scenarios as they arise. California changed its law in direct response to In re MC, 123 Cal.Rptr.3d 856 (Cal. Ct. App. 2011), a case where a biological mother who was married to a woman conceived her child during an interim relationship with a man. The biological father was willing to step up as a legal parent, but was essentially pushed out by the two women. Due to a tragic series of events, both women became unable to care for the child. The court found that all three parties were presumptive or quasi-presumptive parents, but stated that the biological father could not be awarded primary custody until the court resolved which of the three parties were the child's two legal parents.

Issues in Reproductive Technology and Legal Parenthood

Courts and lawmakers, adapting to advances in assisted reproductive technology, have sometimes struggled to resolve which two people should be treated as a child's legal parents. In some states, including New Jersey, male-male partners, as well as female-male partners where the woman cannot carry a child, face greater legal obstacles than female-female partners, or female-male partners where the male is infertile. The two latter pair-ups have the option of pursuing artificial insemination.

Under New Jersey law, the husband of a woman who is artificially inseminated with donated semen under medical supervision is treated as the child's natural parent. The donor has no rights unless he has entered into a written contract to the contrary with the mother. N.J.S.A. 9:17-44. New Jersey has extended this treatment to female-female married, civil union, and registered domestic partners. The June 26 decision of the United States Supreme Court in Pavan v. Smith , 582 U. S. ___ (2017) clarifies that to do otherwise would contravene the equal treatment mandated by Obergefell v. Hodges , 576 U. S. ___ (2015).

Male-male couples, as well as female-male couples where the woman cannot carry a child, have an additional biological hurdle to overcome, as they require a surrogate to bear a child. In New Jersey, they also face an additional legal hurdle, as the state does not recognize surrogacy contracts, even with “gestational surrogates” who have no genetic relationship to the child. The birth mother retains parental rights unless she signs them away at least three days after a child's birth. N.J.S.A. 9:3-41(e); In re TJS, 54 A. 3d 263 (N.J. Sup. Ct. 2012). By contrast, in states like California where gestational surrogacy contracts are enforceable, both intended parents can become legal parents before a child's birth. Cal Family Code § 7962.

New Jersey surrogacy laws are among the most restrictive in the country, but this may soon change. Since 2012, a bill permitting and controlling gestational surrogacy contracts has passed both the Senate and the Assembly twice, only to be vetoed both times by Governor Chris Christie. The newest iteration of the bill, S1238, recently passed the Senate for the third time.

Tri-Parenting By Design

While parental rights cases usually result from conflict between legal parents and third parties, in a more recent development, some same-sex couples have been intentionally forming three-parent families with a person of the opposite sex. Such families generally require court intervention only when something goes wrong. Unfortunately, as with any family, the best intentions do not necessarily prevent problems. A court must then sort out the parents' rights.

In the 2015 New Jersey case of D.G. v. K.S. , 133 A3d 703 (N.J. Super. Ct., Ch. Div. 2015), a biological father (DG), biological mother (KS), and DG's male spouse (SH), decided to have a child together and equally co-parent that child. Things went well for the first few years, until the mother wanted to move to California with the child. The court then determined that DG and KS were both legal parents, and that SH was not a legal parent but nevertheless qualified as a “psychological parent” who stood on equal ground with the two legal parents with respect to questions of custody and visitation. The court awarded joint legal and physical custody to all three parents, effectively blocking the mother from moving with the child.

New Jersey is not the only state to order such an unusual custody arrangement. A judge in New York recently divided custody among three people who had conceived a child together during a triadic romantic relationship. The court found that both biological parents had fostered the tri-parenting arrangement and that ordering anything other than “tri-custody” would be devastating to the child. Dawn M. v Michael M., No. 00109/2011 (NY Supreme Court, Suffolk County, March 8, 2017).

The Psychological Parent Doctrine in New Jersey

In New Jersey, the concept of a “psychological parent” evolved out of the NJ Supreme Court's decision that a child who had spent the first two and a half years of his life in a foster home faced a serious risk of psychological harm if removed from that home. Sorentino v. Family & Children's Society of Elizabeth , 367 A. 2d 1168 (N.J. 1976). The Sorentino court held that such a risk of harm could transcend even the custody rights of the otherwise fit parents. Eventually, New Jersey adopted a four-prong psychological parent test based on a Wisconsin case, In Re Custody of HSH-K, 533 N.W.2d 419 (Wis. 1995). This test was refined in leading New Jersey cases such as A.F. v. D.L.P. , 771 A.2d 692 (N.J. Super. Ct. App. Div. 2001), and V.C. v. M.J.B. , 748 A.2d 539 (N.J. 2000). It requires the following:

1. At least one legal parent must have consented to and encouraged the relationship between the third party and the child. Consent need not be explicit. For example, a single parent may consent by encouraging a parent-child relationship between a child and a step-parent.

2. The third party must generally have lived with the child and the legal parent as a family in the same household. If the parties maintained two residences but held themselves out to the world as a family unit, this prong might still be satisfied.

3. The third party must have assumed the obligations of parenthood, taking on significant responsibilities for the child's care, education and development. Examples include providing food, clothing and shelter for the child without the expectation of reimbursement; taking the child to the doctor or to school and extra-curricular activities; and sharing important occasions like birthdays, holidays and vacations. Financial contributions can be a factor, but these are not required, nor are they given more weight than other factors. Courts consider the overall nature, quality and extent of the functions undertaken by the third party.

4. The third party must establish the existence of a parent-child attachment bond. This may require expert psychological testimony to demonstrate that the child relies upon the third party for emotional support, comfort, protection and companionship. The duration of the relationship is important, but there is no minimum time required; the quality of the bond is what matters.

If this four-prong test is satisfied, the psychological parent stands in parity with a legal parent regarding custody and visitation. The division of parenting time and parental responsibilities between them, however, must be determined according to the child's best interests.

Differences Between Legal and Psychological Parents

Unless the legislature or the courts of a particular state have explicitly stated otherwise, the rights and responsibilities of a psychological parent are limited to those related to custody and visitation and end when a child reaches adulthood. In New Jersey, there is no automatic responsibility for a psychological parent to pay child support. This does not mean that a psychological parent can never be held responsible for financially supporting a child, but any such responsibility would be based upon the equitable theory of estoppel. It does mean that a psychological parent who voluntarily contributes financially cannot arbitrarily stop doing so if that would cause the child to suffer financial harm. Miller v. Miller , 478 A.2d 351 (N.J. Sup. Ct. 1984).

In Miller, the court held a stepfather responsible for providing ongoing financial support for his stepchildren, because he had not only assumed sole financial responsibility for seven years, but had also actively discouraged the children's legal father from visiting them or sending them money. Estoppel is not applicable, however, if there are two legal parents available to provide financial support. See DG v. KS , 133 A.3d at 727. In next month's issue, we conclude this discussion with a look at objections to the psychological parent doctrine, and analysis of how to ensure that intended parents have parental rights.

*****
Bari Weinberger, a member of The Matrimonial Strategist's Board of Editors, is the founder and a managing partner of the Weinberger Divorce & Family Law Group.