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Case Law Review for the Week of August 4, 2014

K.A.F. v. D.L.M./D.L.M. v. K.A.F. & F.D., Appellate Division, Published Decision, August 6, 2014: This appeal presents interesting questions of law resulting from a unique set of facts. K.A.F. was the biological mother of the child. F.D. was the adoptive parent of the child and the former domestic partner of K.A.F. K.A.F. and D.M. , subsequent to the dissolution of the domestic partnership between K.A.F. and F.D., entered into a domestic partnership, which gave rise to D.M.'s claim of a psychological parent relationship existing.

K.A.F. and F.D. argued, successfully at the trial level but overturned in this appeal, that because F.D. did not consent to the creation of the psychological parental relationship between D.M. and the child that no such relationship could be created because K.A.F. and F.D. were two fit and active parents which required consent by both for the psychological parental relationship to have import. The Appellate Division, however, determined that such a finding was not in accordance with the applicable case law, in that both parents did not have to consent to the psychological parental relationship being formed for it to have legal import.

As the Court noted, "the theory of psychological parentage was first enunciated in Sorentino v. Family & Children's Soc. of Elizabeth, 72 N.J. 127 (1977), where our Supreme Court recognized that there is a 'serious potential for psychological harm to young children if they are removed from a foster home where they had lived and been nurtured during their early years.' Zack, supra, 235 N.J. Super. at 430, n.3." The Appellate Court went on to note that "[w]hile 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[,]' that right, as noted in Sorentino, is not absolute. The presumption in favor of the parent will be overcome by 'a showing of gross misconduct, unfitness, neglect, or 'exceptional circumstances' affecting the welfare of the child[.]'"

In the present case, the presence of "exceptional circumstances" was at issue, based upon previous case law which found that "'[s]ubsumed within' the category of 'exceptional circumstances' is the 'subset known as the psychological parent cases in which a third party has stepped in to assume the role of the legal parent . . . .' The 'exceptional circumstances' exception does not require proof that a parent is unfit. The Court has explicitly stated that 'exceptional circumstances' may rebut the presumption in favor of a parent seeking custody even if there is not a basis for terminating parental rights on statutory grounds and, indeed, even if the parent is 'deemed to be a fit parent.' '[E]xceptional circumstances' based on the probability of serious psychological harm to the child may deprive a parent of custody.'"

The Appellate Court then reviewed the legal standard required to prove the existence of a psychological parent relationship: Psychological parent cases, as noted, 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." A third party may become a psychological parent as a result of "the volitional choice of a legal parent to cede a measure of parental authority to a third party[.]" Once a third party becomes a psychological parent, he or she "steps into [the] shoes" of a natural parent, and determinations between the natural and psychological parent are made pursuant to a best interests analysis. Four essential requirements must be satisfied for one to become a psychological parent: [T]he legal parent must consent to and foster the relationship between the third party and the child; the third party must have lived with the child; the third party must perform parental functions for the child to a significant degree; and most important, a parent-child bond must be forged.

Finally, the Court determined that consent of both legal parents was not necessary for the court to find that a psychological parental relationship had been forged: "Nothing in the historical development of the psychological parent policy, in the policy itself, or in the language of the Court, therefore, suggests that both legal parents must consent before a court may consider a claim of psychological parenthood by a third party. Rather, it is sufficient if only one of the legal custodial parents has consented to the parental role of the third party. In that circumstance, a legal custodial parent has voluntarily created the relationship and thus has permitted the third party to enter the zone of privacy between her and her child."

As this case makes clear, the factual circumstances and relevant legal underpinnings of custody cases, whether in a standard familial setting or in a unique set of circumstances, makes it imperative to have an attorney well versed in the applicable case law and well suited to make appropriate factual and legal arguments in support of a custodial claim. For a free consultation regarding your custody matter, please contact a divorce and family law attorney at Miller & Gaudio.

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