Parents have a constitutional right to raise their minor children, free from government intrusion or interference. Parental rights are not absolute, however, and when the welfare of a child comes into question, the law may step in and limit or shape these rights in varying degrees to serve the best interests of the child.

During a New Jersey divorce, there is a statutory presumption that each parent has an equal right to custody of their children, and that the court will work with both parties to determine what custodial arrangements are in the children’s best interests. When a non-parent seeks child visitation, however, different legal considerations apply, especially if a natural or adoptive parent disputes their right to access.

New Jersey public policy says that a parent has greater rights to see, spend time with, and influence the raising of a child than a third-party does, and the “best interests standard” does not apply to third party access situations. Instead, such cases must be evaluated for the following factors:  Is termination of parental rights implicated? Do exceptional circumstances apply?

For a step-parent, a grandparent, or another close contact to take over parental responsibilities for a child, he or she must first pursue termination of the natural or adoptive parent’s rights.  There must be clear and convincing evidence of parental unfitness, abandonment, or gross misconduct.

Another exceptional circumstance recognized by New Jersey law is when young children are removed from their natural or adoptive parents, temporarily, for good cause, and placed in a loving and nurturing foster home. The New Jersey Supreme Court has recognized that children can develop strong emotional bonds with their caregivers, possibly establishing the third party as a “psychological parent”.

Once a third party is recognized as a “psychological parent” to a child, that person is entitled to seek continued contact with the child, for the remainder of the child’s minority years, ending at age 18.  However, just as a growing child’s opinion may change as to how much he or she wants to spend time with a natural or adoptive parent, a child may persuade others, including the court, that he or she does NOT wish to continue seeing the “psychological parent” indefinitely.

For a third party to be recognized as a psychological parent, he or she must pass the 4-part test established in V.C. v. M.J.B. (2000), a New Jersey Supreme Court case:

1. Did a legal parent consent to and foster a relationship between the child and the third party?

2. Did the third party live with the child and provide them with a family setting?

3. Did the third party actually act as a responsible adult, providing for the child’s emotional needs?

4. Has an ascertainable emotional bond arisen between the third party and the child?

Determining an emotional bond between a child and a third party involves an inquiry into the third party’s history of raising the child, proof of a strong emotional attachment, the degree of reliance of the child on the third party, and the probability of harm to the child if the third party bond is suddenly severed.

The court will still give weight to and consider the rights of the legal parent as it makes its decision about the third party’s rights and the best interests of the child.

Child custody cases present the most difficult challenges in the Family Court. If you are struggling with child custody or parenting time issues, termination of parental rights, child relocation cases, or if you know someone who is, please contact our experienced family law attorneys at Hanan M. Isaacs, P.C.  We want the best outcomes for your family, your children, and you. Call 609-683-7400 or contact us online to schedule a near-term and reduced fee initial consultation at our Central Jersey law offices located in Kingston.  We will listen to your facts, advise you as to the law that applies, and suggest the best options to get you to your goals. Call today.  You will be glad you did.