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Third Party Custody Cases
Does a third party have a legal right to file a custody case?

Yes. However, every custody case is different, and each case must be carefully evaluated. In today's world third-party custody cases are steadily increasing. Most third party custody cases involve disputes with grandparents and the biological parents. Grandparents are now routinely living into their eighties and nineties. Therefore, grandparents quite frequently take on the role of the "psychological parent." A nasty third party custody dispute can ensue if the biological parent should decide that he or she wants custody transferred back to them. The grandparents often become very emotionally attached to the child and refuse to transfer custody back to the biological parent. Moreover, in many cases the grandparents may not be enamored with their daughter-in-law or son-in-law, and they believe that they can raise the child better. As a result of this major change in the dynamics of an American family life, third-party custody cases are steadily increasing.

In making a determination as to an award of custody, the court must consider the following factors:

  • The parties' ability to agree, communicate and cooperation in matters relating to the child;
  • the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
  • the interaction and relationship of the child with its parents and siblings;
  • the history of domestic violence, if any;
  • the safety of the child and the safety of the child and the safety of either parent fro physical abuse by the other parent;
  • the preference of the child when of sufficient age and capacity to reasons so as to form an intelligent decision;
  • the needs of the child;
  • the stability of the home environment offered;
  • The quality and continuity of the child's education;
  • the fitness of the parents;
  • the geographical proximity of the parent's homes;
  • the extent and quality of the time spent with the child prior to or subsequent to the separation;
  • the parents' employment responsibilities and;
  • the age and number of the children.

According to N.J.S.A. 9:2-4 "any person" interested in the welfare of a child has the right to file a custody case. The applicable New Jersey Statute provides as follows:

When the parents of any minor child or the parent or other person having the actual care and custody of any minor children are grossly immoral or unfit to be entrusted with the care and education of such child, or shall neglect to provide the child with property protection, maintenance and education, or are of such vicious, careless or dissolute habits as to endanger the welfare of the child or make the child a public charge, or likely to become a public charge or when the parents of any minor child are dead or cannot be found, and there is another person, legal guardian or agency exercising custody over such child it shall be lawful for any person interested in the welfare of such child to institute an action in the Superior Court, Chancery Division, Family Part, in the court where such minor child is residing, for the purpose of having the child brought before the court, and for the further relief provided by this chapter. The court may proceed in the action in a summary manner otherwise.

If the biological parent contests the transfer of custody of the child to a third party, then there is a presumption in favor of the parent. This presumption can be overcome by showing that the biological parent is unfit, has abandoned the child, gross misconduct, or any other exceptional circumstances. Physical and psychological harm can rebut the presumption of custody in favor of the biological parent. Moreover, if a third party can prove that he or she has become the psychological parent of the child, then this can rebut the presumption of custody in favor of the biological parent. See, Watkins v. Nelson, 163 N.J. 235 (2000).

What is the standard of law that the court uses to determine if a third party has become a psychological parent?

New Jersey case law has developed a four-prong test to be used to evaluate whether a third party has become a psychological parent. The test is as follows:

  • That the biological adoptive parent consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child;
  • That the petitioner and the child lived together in the same household;
  • That the petitioner assumed 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]; and
  • That the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, depended relationship parental in nature. V.C. v. M.J.B., 319 N.J. Super. 103 (App. Div. 1999).

Once a third party has been deemed to be a psychological parent to a child under the four prong test, then he or she stands in parity with the legal parent. Any custody and visitation issues are then determined on a best interest legal standard. The family court has special power to award custody to a third party. Once a psychological parent relationship is formed then the best interests test is then used. It must be emphasized that a fit parent has a superior right in any custody case.

What are the important cases that have addressed third-party custody disputes?
  1. P.B. v. T.H., 370 N.J. Super. 586 (App. Div. 2004).

    Here, V.H. the child in this case was removed from her mother, who was a drug abuser. The child was then placed in foster care with her older brother. Thereafter, the children's maternal aunt, T.H. who was the defendant in this case, took custody of the children. The mother consented to the transfer of the custody of the children with the aunt.

    T.H. then became overwhelmed with the children. Consequently, P.B. a friend and downstairs neighbor came to her assistance and began caring for V.H. and the other children. T.H. gladly turned over full physical and emotional responsibility of the children to her. P.B. referred to her home as the only one that the children have known since birth.

    Eventually, the birth mother recovered from her drug abuse problem, and she wanted to get custody of her children back. Therefore, she filed an application to transfer custody of both children to back her. At trial, the court found that the neighbor had standing to seek custody of the children and awarded custody to the neighbor.

    On appeal, the Appellate Division upheld the trial courts award of custody to the neighbor. The court held that; 1) There was evidence that the children's maternal aunt consented to and fostered the neighbor's formation and establishment of a parent -like relationship with the child, as required for the neighbor to become the "psychological parent" and to initiate a case to seeking custody of child; 2) the evidence supported a finding that neighbor and child lived together in the same household, as required for the neighbor to become the "psychological parent" and to file a custody case; and 3) the evidence supported a finding that the neighbor assumed the obligation of parenthood by taking on the responsibility for the children's care, education, and development without the expectation of financial compensation.

    In summary, this case indicates that the New Jersey courts have recognized that third parties have the right to file custody cases if there are compelling circumstances. This case also indicates that the law regarding third parties legal rights to seek custody have been expanded by the New Jersey judiciary.

  2. Hoy v. Willis, 165 N.J. Super. 265 (App. Div. 1978).

    Here the court refused to transfer custody of a six-year-old boy from his foster mother who was also his maternal aunt. The child was placed with his aunt when he was one year old. The court found that the aunt had become the child's psychological parent, and that any custody transfer would most likely cause psychological harm to the child.

  3. Watkins v. Nelson, 321 N.J. Super. 482 (App. Div. 1999).

    Here the Appellate Division affirmed the trial court's finding that a nineteen-month-old child should remain in the custody of her grandmother and step-grandfather. The grandparents cared for the child since she was twelve days old when her seventeen-year-old mother died in a car accident. The court held that the grandparents were her psychological parents and that they should retain custody. The fitness of the twenty-year-old father of the child, was not questioned. The best interests of the child were the key issue. The father never married the child's mother and he was not involved in a long-term committed relationship with her.

    The case was then appealed to the New Jersey Supreme Court, and it reversed the Appellate Division. The Supreme Court held that: (a) There is a presumption that exists in favor of a surviving biological parent in an action for guardianship of a child; (b) a presumption in favor or a surviving biological parent cannot be rebutted by a simple application of the best interest tests; and (c) the father was entitled to custody.
Who receives custody of the child if the custodial parent dies?

If the custodial parent of a child dies then the surviving parent has a rebuttable presumption of custody. According to N.J.S.A. 9:2-5 custody does not automatically revert to the surviving parent. The family court is required to enter an order or a judgment that transfers custody to the surviving parent.

The standard of review in these types of custody cases is not a best interests standard. New Jersey Courts have determined that "a presumption of custody exists in favor of a [surviving] parent, and that only a showing of unfitness, abandonment, grosses misconduct, or "exceptional circumstances' will overcome this presumption." Therefore, only if the surviving parent is unfit or if there is an exceptional case will the best interests standard be used to determine custody of the child. See, Watkins v. Nelson, 163 N.J. 235 (2000).

In summary, a third party can only seek custody from the surviving parent if he or she is unfit, has abandoned the child, or is grossly immoral. The third party has a high burden to obtain custody from a surviving parent. If the surviving parent is fit and if there are no exceptional circumstances then that parent will be entitled to custody of their child. However, if there are compelling circumstances, then the court will use a best interests analysis to determine any custody dispute.


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