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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:
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:
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?
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.
If the divorce is being filed under one of the seven fault grounds (including extreme cruelty, adultery, abandonment, substance or alcohol addiction, institutionalization, deviant sexual conduct and incarceration), the 18 month separation period, required for a no-fault divorce, is waived. However, each ground for divorce has its own stipulations.
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