The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
An interesting case from a New Jersey family court, decided in August, but just released for publication earlier this month, D.G. v. K.S., 2016 WL 482622 (parties initials' changed to pseudonyms for ease of reading):
This case involves issues of custody, removal, and support surrounding an unusual agreement entered into between three friends to conceive and jointly raise a child in a tri-parenting arrangement. [Olivia] is a female minor child born in 2009. Plaintiff, [Doug], is the biological father of [Olivia], and [Kristine] is the child's biological mother. Plaintiff, [Shawn], is [Doug]'s same-sex spouse, who has bonded with and has become a psychological parent of [Olivia]. . . . [T]he court awards joint legal and joint residential custody of [Olivia] to all three parties and denies the application of [Kristine] to remove and relocate the child to a different state. . . .
Beginning in the fall of 2006, [Doug], [Shawn], and [Kristine] discussed conceiving a child together and creating a tri-parenting arrangement. The idea of all three parties having a child together, which started as playful thought, quickly became serious. The parties ultimately decided that they indeed would go forward and conceive and raise a child together. The parties discussed their respective roles in the child's life. They believed they were setting forth an unprecedented paradigm that they coined a "tri-parenting relationship." The parties collectively decided to use [Doug]'s sperm, primarily because [Kristine] and [Doug] had been long-time friends. They used [Kristine]'s egg and decided to give the child [Shawn]'s surname. . . . [Insemination was done using] an in-home conception method known as the "Baster Method." . . .
[Olivia] was born in 2009. Soon after she was born it was "all hands on deck" as the parties all described. All three parties rose to the occasion. The parties spent the majority of the summer after the child's birth in Point Pleasant Beach, all cramped in [Kristine]'s home, co-parenting the child.
At the time, [Kristine] was working at a local restaurant owned by her parents, and she went back to work shortly after the birth. [Doug] was operating a business at the Jersey Shore, and [Shawn], who was a high school teacher in New York City on summer recess, undertook a significant portion of the parenting responsibilities. At the end of the 2009 summer, [Doug and Shawn] decided to rent a home of their own in Point Pleasant Beach.
Following the summer of 2009, the parenting time of each party fluctuated. In the summers, [Doug and Shawn] assumed a significant portion of the parenting time due to [Kristine]'s involvement in her parents' restaurant. [Kristine] also owned a home in Costa Rica, where she took the child every year for varying amounts of time during the winter, with consent of [Doug and Shawn]…. No written agreement as to any of the parties' legal rights of the child was made. The child's early life was exactly as they had planned and the parties were able to co-parent effectively.
The parties believed that they were creating a new family paradigm, a tri-parenting relationship with the child. They were enthusiastic about creating this new family concept….
Based on the belief that their situation was unique and wanting to share their "story" with others, the parties began to solicit news media. Eventually, "Marie Claire" magazine wrote an in-depth article, which was admitted into evidence. After that article was published the parties were approached by multiple talk shows and television programs. They appeared on the "Nate Berkus Show" to discuss their concept of "tri-parenting." . . .
The turning point in the relationship and the beginning of the turmoil and acrimony stemmed from [Kristine]'s desire to relocate with the child to California. In March of 2013, when [Kristine] and the child returned from a trip to Costa Rica, [Doug and Shawn] learned that [Kristine] had fallen in love with her neighbor in Costa Rica, [Alan], who primarily resided in California. [Alan] had shared custody of his children with his ex-wife in California, which prevented him from relocating to New Jersey.
Plaintiffs heard from others that [Kristine] was considering relocating with the child to California. In June 2013, [Kristine] approached [Doug and Shawn] and arranged a meeting. During that meeting, she discussed her thoughts and plan about relocating to California. The meeting ended with [Doug and Shawn] requesting a written parenting-time proposal from [Kristine].
In December 2013, [Kristine] finally presented a written plan to [Doug and Shawn]. After considerable discussions concerning the proposed plan, in early March 2014, [Doug and Shawn] formally communicated their objection to [Kristine]'s relocation. It was at this point that the parties' original "tri-parenting" arrangement began to deteriorate. Plaintiffs desired a court-ordered parenting time and custody determination. Ultimately, [Doug and Shawn] filed the referenced complaint.
After the complaint was filed, without [Doug's and Shawn's] consent, [Kristine] took the child on a trip to California. Because of the contents of a text message from [Kristine], and her trip to California, [Doug and Shawn] sought an order to show cause on June 13, 2014. As noted, the court transferred sole custody of [Olivia] to plaintiff [Doug] However, prior to the return date of the order to show cause, a consent order was entered that addressed interim parenting time and gave legal custody of the child to plaintiff [Doug] and [Kristine]. However, that consent order did not address residential custody. Prior to the plenary hearing, there were a series of interim consent orders addressing various issues.
The court concluded:
1. Shawn was a "psychological parent" of Olivia. Under this doctrine, which is fairly well-established in many states, a person who has played the role of a parent to a child (with the legal parents' consent) can get parental rights, largely on the theory that continuity of such parenting is in the child's best interests. (This doctrine is often used, I'm told, with regard to stepparents.) The legal requirements for psychological parent status in New Jersey are
(1) that the biological or adoptive parent consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child; the legal parent must have fostered the formation of the parental relationship between the third party and the child; (2) that the petitioner and the child lived together in the same household; (3) that the petitioner assumed the obligations of parenthood by taking significant responsibility for the child's care, education and development, including contributing toward the child's support, without expectation of financial compensation [a petitioner's contribution to a child's support need not be monetary]; and (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.
Those requirements were met here as to Shawn, the court held.
2. Kristine seeks to remove the child from New Jersey to California. In such a situation, under New Jersey law, where parents "truly share both legal and physical custody, an application by one parent to relocate and remove the residence of the child to an out-of-state location must be analyzed as an application for a change of custody." In such a situation, the parent who wants to remove the child "must demonstrate that the best interests of the child would be better served by residential custody being primarily vested with the relocating parent."
The court then went through the best-interests factors that New Jersey requires courts to consider, and concluded (among other things) that:
- "[Doug and Shawn] are more likely than [Kristine] to communicate, seek discussion, and foster agreement between all three parents on issues regarding the child."
- Though "[Doug and Shawn] have always respected [Kristine] and have cooperated in sharing parenting time with her," Kristine has sometimes not reciprocated. "[T]he court finds instances of [Kristine]'s unwillingness to allow parenting time of [Doug and Shawn] with the child in the following ways: by unilaterally changing visitation times, by unilaterally threatening to limit parenting time and its location to Point Pleasant Beach, by disrespectfully, and with no regard for the negative impact on the child, attempting to minimize [Shawn]'s status as a parent of the child, by unilaterally switching the transfer point of the child from a mid-way location and demanding [Doug and Shawn] drive the total distance to Point Pleasant Beach from Manhattan, and by eliminating [Shawn] from emails and text messages and only communicating with [Doug]. Furthermore, after Christmas 2013, while [Doug and Shawn] had a block of time with the child in New York City, [Kristine] repeatedly interfered with this time by demanding daily phone calls and frequent visits with the child and sending cards to her daily."
- The court expressed "concerns regarding the stability of [Kristine]'s home environment. [Kristine] lives in a small, two-apartment residence, sharing a bed with her daughter in Point Pleasant Beach. She rents one of the apartments yearly. In the summer, she rented her apartment as well, and relocated to a friend's house. For various times during four years, she relocated with the child to a small house in a remote area of Costa Rica, with poor communication service. [Kristine's expert] wrote in his report that [Kristine] 'described her Costa Rica location as 'off the grid,' namely, a small community of 'whacky' people from the same cloth, who all get along and support each other. She identifies the life style as idyllic and wonderful for the child, though she also reports that a very good friend was murdered there in the recent past.'"[Kristine] desires to relocate, with the child, to California. First, she intended to marry, live with, and be supported by her fiancé whom she met in Costa Rica. She has since changed her mind, and now intends to rent a small house in Ocean Beach, California and reside there only with the child during a 'transition' period. She is no longer engaged to [Alan], who is now her boyfriend, and she must first obtain a divorce from D.J.P., from whom she separated ten years ago. [Kristine] is currently unemployed, and during the transition period in California, she intends to work part-time and pursue a teaching degree.
"On the other hand, [Doug and Shawn] have been married for four years and reside together. [Doug] recently sold his Manhattan condominium for $1.65 million dollars and purchased a four-bedroom house in Princeton, New Jersey. . . . "
- "[Doug and Shawn] will [best] assure the quality and continuity of the child's education.
- "[A]ll three parents are fit. They all greatly love and care for the child. The court has concerns, however, regarding the financial stability of [Kristine]. Plaintiffs are employed, with [Doug] owning a business with two partners, and [Shawn] being an educator at a top private school. Furthermore, [Doug] recently sold a Manhattan condominium for $1.65 million dollars and recently published a book, receiving a $40,000 advance. [Kristine] recently sold her house in Costa Rica for $207,000, and testified she owns her Point Pleasant Beach two-apartment house, of which she rents out one apartment all year and her own apartment in the summer. She testified she could support herself and the child in California while attending college, seeking a Master's Degree, and working part-time for a friend because she has $200,000 in savings. [Kristine] does not have full-time employment and only an alleged promise of part-time employment in California."The court finds that if the child resides with [Doug and Shawn], she would have one father with flexible working days and one father with a regular teacher's schedule at the same school system as the child. Both are available to meet the needs of the child. If the child resides with [Kristine], [Olivia] may have an unemployed mother in New Jersey or a mother attending college and working part-time in California, who would not be as flexible and available in meeting her needs."
- "[P]rior to the implosion of the 'tri-parenting,' the parenting time was approximately seventy percent with [Kristine] and thirty percent with [Doug and Shawn]. Based on the testimony and documentary evidence, [Kristine] has been the de facto primary residential custodian of the child and [Doug and Shawn] have been the alternate residential custodial parents."
- "The court finds both [Doug's and Shawn's] testimony highly credible, based upon their demeanor, consistency, recollection of the facts and their sincere interest in what is in the best interests of the child, including maintaining and respecting equal parenting with [Kristine]. On the contrary, the court finds [Kristine]'s testimony not credible and disingenuous based upon her demeanor, hesitation, and avoidance of cross-examination questions, lack of recollection of the facts, distortion of her intentions as evidenced in the multitude of email exhibits presented into evidence, inconsistent documentation and testimony regarding relocating to marry and reside with [Alan], her fiancé (now boyfriend), contradictions in her direct and cross-examination testimonies, and denial of her ill-intentions of negating [Doug's and Shawn's] duties and full-parenting roles in the child's life."
The court concluded that these factors cut in favor of "[Doug and Shawn] and [Kristine] having equal legal and residential custody of [Olivia]," with "[Doug and Shawn] having fifty percent residential custody and [Kristine] having fifty percent residential custody. The court further orders that the child attend Day School and reside with [Doug and Shawn] in Princeton during the school week. The court further orders that the parties follow the parenting time schedule ordered by the court in this opinion." (Kristine would have the bulk of the parenting time during school breaks.)
And the court rejected Kristine's request for permission to relocate with Olivia to California:
[Kristine]'s reasons for the move are at best tentative and speculative, including a major change in her living situation with [Alan], her employment and educational plans, her availability to care for the child and her lack of family support to help with the child's care, her house rental plan, and her friends and new family contacts. [Kristine] would uproot the child from her long and stable living arrangement with [Doug and Shawn] and [Kristine]…. [Olivia] believes she lives with her fathers and her mother. Further, [Kristine] would uproot the child from her family and social network in the surrounding area. Moreover, the distance between California and New Jersey would diminish the child's ability to maintain her significant bond with [Doug and Shawn], who would be excluded from her daily life activities and denied frequent parenting time.
[Kristine]'s past behavior is predictive of her future behavior of unilateral decision-making for the child and of her not maintaining the child's significant bonded relationship with [Doug and Shawn]. Plaintiffs' past behavior is predictive of their future behavior of cooperating and collaborating with [Kristine] on issues of raising the child, and of their commitment to maintaining the child's significant bonded relationship with her mother.
4. "[Shawn]'s claim for the establishment of legal parentage must be denied as a matter of law. This court does not have the jurisdiction to create a new recognition of legal parentage other than that which already exists-genetic contribution, adoption, or gestational primacy. . . .
"Here, [Shawn] did not contribute genetically to or act as a gestational carrier of the child, nor has he moved for adoption. Thus, he may not be found to be a legal parent. . . .
"The constitutional claims of [Shawn] in the instant case must also fail. Although this court is particularly sympathetic to the claims of [Shawn] to establish legal parentage, a 'tri-parenting model' with three legal parents is supported neither by the statute at hand nor the case law. A statutory change is best left to the Legislature, as such change demonstrates a 'social policy choice,' not a constitutional question. Such requested designations by this court most likely would have far-reaching implications 'that should be addressed, if at all, by the other branches of government, informed by a thorough and public debate of these profound and significant questions.' Unfortunately, although the best interests of the child standard is used for various family law determinations involving the child's well-being, it is not a factor in defining parenthood under the Parentage Act."
5. "The Court finds it inequitable to require [Doug and Shawn] to pay [Kristine] child support since the [established child support] guidelines do not support this intricate 'tri-parenting model' and [Shawn], as a psychological parent, cannot be compelled under New Jersey Law to contribute child support. Furthermore, the court finds it similarly inequitable for [Kristine] to pay a small amount of child support to [Doug] because [Doug and Shawn] together have a considerable income advantage over [Kristine] and [Shawn] is committed to the financial and emotional needs of the child. As such, the court orders that neither party shall pay child support to the other."