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Wall Divorce Attorney- Fighting for Custody as a Non-Biological Parent

Posted by Unknown | Nov 03, 2019 | 0 Comments

Custody cases typically involve the biological parents, but millions of children today are being raised by adoptive parents, which include grandparents, relatives and family friends.  These third party parents deserve recognition, especially when you consider what they go through in order to be awarded custody.  For one thing, it can take months, perhaps years, for a judge to make a final decision on an adoptive parent custody dispute.  Another issue is the overwhelming presumption of a biological parent's rights, which the adoptive parent would need to overcome with physical evidence, compelling circumstances, and perhaps even expert testimony.

Overcoming the legal principle that “the fit parent is presumed to be entitled to custody”  requires proving that the biological parent is either unfit, has abandoned the child, or has committed gross misconduct towards the child.  Satisfying the standard for such “exceptional circumstances” is a two-step process in which the third party parent must show that he or she has become the child's “psychological parent”.  A psychological parents is someone who has assumed the role of the parent by fulfilling the child's needs and making the decisions that are in the child's best interests.  In addition, it must be shown that the biological parent's character, conduct or abandonment is serious enough to justify awarding custody to a third party individual.

Once the exceptional circumstance is proven, there are four factors that must be fulfilled in order to show a “parent-life” relationship between the child and the third party parent. 

  • The biological parent consented to, or fostered the establishment of a parent-like relationship between the child and the petitioner.
  • The petitioner and the child live together in the same residence.
  • The petitioner took on significant responsibilities towards the child's care, education and development, without expectation of financial compensation.
  • The petitioner has established a dependent, parental bond with the child by caring for him or her for a sufficient length of time.

Once these two parts are satisfied, judges will apply the best interests standard in order to make the final decision.  Because of the subjective nature of the “best interests standard”, you may think that this last portion is the most difficult part to prove.  There are, however, some very complicated circumstances related to whether or not a parent has consented to, or encouraged a relationship between the child and the psychological parent.  For example, it could be determined that a biological father gave tacit, or passive consent by not taking direct action towards a paternity and/or custody suit when he knew that his former partner was pregnant.  If the child's grandparents had been taking care of the child for years, without any support from either biological parent, it could be determined that the father tacitly gave consent to the establishment of a parent-child relationship simply by not taking any action for several years.  With such complications, it's no wonder that adoptive parent custody disputes are among the most complicated cases for family court judges to decide. 

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Vincent DeLuca, Esq.

As a founding partner at Villani & DeLuca, Vincent DeLuca is one of only a few Certified Matrimonial Law Attorney in Ocean County, New Jersey. Mr. DeLuca has helped many clients navigate the delicate details of their own divorce. Mr. DeLuca is also a trained divorce mediator and collaborative divorce attorney. Call today at (732) 751-4991 to speak to Mr. DeLuca or one of our experienced NJ Divorce Lawyers.