NON BIOLOGICAL & SAME SEX PARENT CUSTODY RIGHTS

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NON BIOLOGICAL & SAME SEX PARENT CUSTODY RIGHTS

Can non-biological parents have custody rights?

In New Jersey, in certain unique circumstances, non-biological parents can have custody rights. The same is true for step-parents having custody rights for children that were not born to them. In the seminal case on point, Watkins v. Nelson, 165 N.J. 235 (2000), the trial court awarded custody to the maternal grandparents after the mother having died. The father appealed but the appellate court sided with the trial court. The trial judge concluded that the grandparents were the child’s psychological parents and that in a custody dispute between biological and psychological parents, the best interests of the child controls.

Non-Biological Parent Custody Rights

The Supreme Court noted that the custody statute, N.J.S.A. 9:2-5, does not require the court to use the best interests test in making a custody determination between a parent and a third party. Rather, a presumption exists in favor of the parent. A third party can overcome the presumption only by showing the other parent is unfit due to gross misconduct or abandonment, or by demonstrating exceptional circumstances. Therefore, even if the parent seeking custody is deemed to be a fit parent, the presumption in favor of granting that parent custody can be overcome if the court determines that granting custody to a third party would promote the best interests of the child. Where the non-biological parent and child have formed a significant and parent-like bond, psychological parentage can be said to exist. Therefore, a non-biological parent can have custody rights when they are deemed to be the psychological parent to the child. The psychological parent would then be considered the legal parent in this scenario. A legal father who is not the biological parent can have greater rights in certain circumstances to the biological father where there is a strong psychological bond with the child.

In same sex relationships, the same is true for the non-biological parent. LGBT child custody is determined the same way custody is determined for heterosexual couples. LGBT parental rights in same-sex custody cases proceed exactly as they do for heterosexual couples. If the non-biological parent in a same sex relationship has been determined to be the psychological parent to the child, then they will have all the rights and responsibilities as the natural parent. Furthermore, child born during marriage are presumed to be the children of the marriage. Therefore, even though only 1 parent in a female same-sex marriage can be the natural parent, if the child was born during the marriage of the same-sex couple, the child is automatically deemed to be the child of the non-biological parent regardless of psychological parentage.

Non-Biological Parent Custody Rights: How to remove the non-biological father from birth certificate?

If a non-biological father is named on the child’s birth certificate, there are steps that can be taken to have his name removed. If the parties agree that the non-biological parent is not the parent to the child, they can both sign affidavits and certificates of parentage to have his name removed from the child’s birth certificate. The Vital Statistics department of the New Jersey Department of Health provides all of the information one needs to make this change.

Non-Biological Parent Custody Rights: How to gain custody of a child that is not yours

If the natural parent is challenging your custody of a child that is not yours, and the issue cannot be resolved out of court, then the appropriate procedure is to file a complaint and application in the Superior Court seeking to be declared the psychological parent to the child and seeking parenting time. It would be very important for the non-biological parent to be prepared to fully explain all the details about the nature and extent of their relationship with the child.

Non-Biological Parent Custody Rights: What rights does a non biological father have?

Can a non-biological father pay child support? Yes! Even when the non-biological father is not seeking custody rights, he can be held responsible for the support of the child if the court determines him to be the psychological parent to the child. This was held to be true in the case of J.R. v. L.R., 386 N.J. Super. 475 (App. Div. 2006).

Give us a call today to make an appointment and discuss your non-biological parent custody rights with an attorney.

Rosanne S. DeTorres
Ms. DeTorres is the managing partner and co-founder of DeTorres & DeGeorge Family Law. She is also only one of 150 attorneys in the State of NJ that is certified by the NJ Supreme Court as a Matrimonial Law Attorney. Ms. DeTorres graduated...
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