Tri-Parenting Arrangements and Custody
Changing American Families
Changing social norms and biological advances in reproductive technology have changed the face of the family, in turn creating legal consequences and implications.
Families formed by non-traditional marriages, same-sex couples, and individuals intending to parent alone may use assisted reproductive technology. Assisted reproductive technology and adoption can help create families who may not be biologically related.
Tri-Parenting Arrangements – D.G. and S.H. v. K.S.
One example is a tri-parenting arrangement. In D.G. and S.H. v. K.S., the court addressed issues of custody, relocation, and child support between a same-sex married couple and their female friend. The two men – D.G and his husband, S.H – and their friend, K.S., agreed to conceive and jointly raise a child in a tri-parenting arrangement. The parties agreed to use D.G.’s sperm and K.S.’s egg to conceive the child, and the child was given S.H.’s last name. S.H. would not be biologically related to the child. The parties went to parenting classes and prepared their homes with the intent that the child would reside with all three parents.
In the initial weeks after the baby’s birth, the parties lived together in one home and participated in all parenting tasks. Shortly thereafter, the two men moved to a home near K.S. The parties tri-parented the child amicably for several years.
Eventually, K.S. announced her plan to marry and move to California with the child. Unable to reach an agreement, D.G. and S.H. filed a complaint seeking legal and physical custody, parenting time, and a determination that S.H. was the child’s psychological and legal parent. The couple argued that S.H. was a psychological parent of the child.
What Standard Applies to Tri-Parenting Contested Relocation Cases?
K.S. requested that the Court first establish the standard to be used in analyzing her application to remove the child from New Jersey. She argued that the court should use the standard announced in Baures v. Lewis, which required the Parent of Primary Residence to prove two things: (1) a good faith motive and (2) that the move will not be inimical to the interests of the child. However, on August 8, 2017, the New Jersey Supreme Court abandoned that standard in Bisbing v. Bisbing which is the subject of a blog post here. The Plaintiffs requested that the Court apply the “best interests of the child” standard. The Court reserved decision on the removal standard until the custody determination was made.
The Psychological Parent and Custody
The Court found that S.H. was the child’s psychological parent.In so ruling, the Court looked to the following findings:
- The Plaintiffs and the defendant mutually agreed to embark on the journey of conceiving and raising a child together;
- G. consented to, and fostered, the parent-like relationship between S.H. and the child;
- S. consented to S.H.’s being involved in the child’s life by agreeing to the “tri-parent relationship” prior to conceiving the child and for a significant period following the child’s birth;
- Both biological parents consented to and encouraged the parenting of the child by S.H., and gave the child S.H.’s surname;
- H. was involved with raising and nurturing the child since birth;
- Both S.H. and D.G. had significant, recurring parenting time with the child in K.S.’s household, as well as their own;
- H. assumed the obligations of parenthood without expectation of financial compensation;
- H. was integrally involved with the child’s life in a parental role;
- H. has contributed financially to the expense of raising the child; and
- H. was in a parental role for over six years, which was a sufficient amount of time to establish a bonded, dependent relationship with the child that is parental in nature.
Accordingly, the Court found that S.H. satisfied the four criteria to be a psychological parent.
The Court went on to explain that, once a third party has been determined to be a psychological parent to a child, he or she stands in equal footing with the legal parent. Custody and parenting-time issues between a parent and the psychological parent are to be determined on a best-interests-of-the-child standard, giving weight to the factors set forth in N.J.S.A. 9:2–4. The Court evaluated the factors and concluded that D.G. and S.H. would share equal legal and physical custody of the child with K.S. The child would live primarily with D.G. and S.H. during the school year, with equal parenting time with K.S. on weekends, vacations, and summers.
Relocation Application Decision
In light of the Court’s decision that D.G., S.H., and K.S. would share legal and physical custody of the child, K.S.’s application to relocate the child from New Jersey to California was denied. The Court also noted the speculative nature of K.S.’s relocation plans.
The Court stopped short of deeming S.H. a legal parent. Under New Jersey’s Parentage Act, legal parentage can only be conferred upon a party by “genetic contribution, gestational primacy, or adoption.” T he Court found that S.H. was not a gestational carrier, not biologically related to the child, and did not seek a formal adoption of the child.
Thus, the Court did not find that S.H. was a legal parent.
This ruling illustrates how our Courts are presented with new issues as societal norms continue to evolve.