New Jersey Lawyer Blog
Changing Views Regarding a “Typical Family”
The Mirriam-Webster Dictionary defines a family as “the basic unit in society traditionally consisting of two parents rearing their children.” Sociologists define it as a group that society recognizes as being connected to one another by blood, marriage, or adoption; its members are tied to one another emotionally and they provide for each other’s well being.
Our ideas regarding the make-up of a typical American family have changed over the last few decades. Not that long ago, the traditional American family was thought to comprise a mother, a father, and their children. Today single-parent families as well as “cohabitation” families, in which the parents do not marry, have become quite common.
The Supreme Court ruling of June 26, 2015, which declared that same-sex couples have the right to legally marry and adopt children, brought about a further change in our perception of what constitutes a family. Since the legalization of same-sex marriages, tri-parenting has become a popular topic.
The following are two interesting New Jersey cases:
Case #1: D.G. v. K.S.
In an order decided in August 2015 and published in February 2016 a New Jersey family-court judge awarded custody of a child to three parents: the biological father and his same-sex spouse and the biological mother. For privacy reasons, the names Dan, Sam, and Kate will be used respectively. The three friends had agreed before the child was conceived that they would use Dan’s sperm and Kate’s egg and that the child would be given Sam’s last name. All three parents would share in raising and caring for the child. They used the term “tri-parenting” to describe their unique arrangement.
Things seemed to go well for about four years, but a problem occurred when Kate informed the other two that she wanted to move to California with the child. Dan and Sam filed a complaint requesting that Kate be prevented from relocating with the child from New Jersey to California and that they—Dan and Sam—be granted custody of the child.
Ocean County Superior Court Judge Stephanie Wauters awarded “joint residential custody” to all three adults. The order stated that the child should spend half of her time in New Jersey with Kate and the other half in New York City with Dan and Sam. Kate would not be permitted to relocate with the child to California. The judge also ruled that the three would share equally in the expenses involved in raising the child.
Judge Wauters said, however, that she could not declare Sam the child’s legal parent because he did not meet any of the three conditions that would make him a legal parent in New Jersey. The three parties then asked that Sam be considered a “psychological parent.” After analyzing the requirements, the judge agreed that Sam did fit the State’s definition. She ruled that he is a psychological parent and that as such he would share custody with the same parenting rights as the child’s two legal parents.
A Legal Parent
According to the New Jersey Parenting Act, these are the requirements to be considered a legal parent:
- genetic contribution
- gestational parent (bears the child)
- adoptive parent
A Psychological Parent
These are the requirements necessary for one to be considered a psychological parent in New Jersey:
- The child’s biological or adoptive parent fostered the parent-like relationship.
- The adult and the child resided in the same household.
- The relationship between the adult and the child has been going on for a long enough period of time for a bonded, dependent, parental-type relationship to have formed.
Case #2: E.Q. v. E.C. and D.L.
This case involves E.C., the child’s biological mother; E.Q., the child’s non-biological mother who adopted her; and D.L., the child’s biological father. For privacy reasons, they will be called Ellen, Emily, and Doug respectively. Although it was at first believed that the child was conceived as a result of artificial insemination, it was later learned that conception was the result of an extra-marital affair. They obtained a court order that named all three of them legal parents.
Even after Ellen and Emily divorced, the three adults agreed that they should all maintain their status as “legal parent” and they requested that a three-parent birth certificate be issued. The attorney general, as counsel for the Bureau of Statistics, refused and instead set forth a motion to vacate, or cancel, portions of the previous order.
The State reasoned that although Doug was the biological father, Emily should be the one named as one of the parents on the birth certificate because she and Ellen were married at the time the child was conceived and she had formally adopted the child. Throughout the United States, the husband of the birth mother is listed on the birth certificate as the child’s father unless a court order says otherwise. This is called “spousal presumptive parentage.” The attorney general reasoned that the same should apply to same-sex marriages.
The attorney general did not agree, however, that Doug should be named a third parent. He ruled that Doug’s name would not be allowed on the child’s birth certificate. This decision is being challenged, and it is still unknown how it will be resolved.
Complicated Cases
When the Supreme Court ruled that same-sex marriages are legal, one of the benefits specified was the right to have both parties’ names put on a child’s birth certificate. Even so, some states are still fighting the right for same-sex couples to have both names listed. And while the Supreme Court made no mention of having three names listed, some states—such as California—have actually passed laws stating that it is legal for a child to have more than two parents.
Custody, relocation, and support are complicated issues even without the added difficulties involved in tri-parenting situations. It will be interesting to see how the challenge to the attorney general’s decision regarding E.Q. v. E.C. and D.L. is resolved and the effects that these cases have on future rulings.