I’m detouring from surrogacy to write about an important new decision from New Jersey. The opinion, issued by the Appellate Division of the Superior Court, is here. I’m going to take a bit of time to lay out the facts before discussing the issues raised and resolved. Do note that the case is subject to further appeal in New Jersey as well as subsequent proceedings in the lower court should the appellate opinion stand.
KAF and FD were a lesbian couple. They began living together in 1999. They decided to have a child together. They used sperm from a donor and Arthur was born in 2002. They relationship did not thrive and in 2004 they split up. However, unlike many lesbian couples who show up in court cases, they got along well enough afterwards and in 2005 FD adopted Arthur. (She did so with KAF’s approval, which I’m quite sure was required.)
Meanwhile, KAF became involved with another woman, DM. They moved in together in 2004 and in 2006 they bought a house together and became domestic partners. (Arthur was then 4.)
Arthur divided his time equally between KAF and FD, but of course when he was living with KAF he was also living with DM. Facts beyond this are disputed in this case, but DM says that when Arthur was with KAF, KAF and DM equally shared parenting responsibilities. If this is true (and of course it is a big if) KAF must have at least tacitly agreed to this. At the same time, FD (also a legal parent of Arthur) contends that she opposed DM taking on a parental role. This, too, is in dispute, but it seems fairly clear that she didn’t explicitly agree to DM’s role.
The relationship between DM and KAF didn’t last. In 2010 DM moved out of the house. (That’s four years after they moved in–Arthur was by then 8.) DM had visitation with Arthur for another year–until 2011–but by January 2012, KAF told DM she was terminating her relationship with Arthur. DM sued asserting she was a psychological parent. (If DM was a psychological parent, then the court would have to move on to consider whether the best interests of Arthur required that his relationship with her be continued.)
The trial court rejected her claim without holding a hearing. The question the appellate court faced was whether DM had enough factual support to warrant a hearing.
The trial court had dispensed with the hearing on the theory that DM had to show that FD consented to DM assuming a parental role in order to win at a hearing and that DM couldn’t show this. This brings me to a major (and to me, startling) holding of the appellate court: The court held that the consent of KAF was enough to allow DM to proceed with her claim that she was a psychological parent. The consent of both legal parents was not necessary.
There’s an extensive discussion of the NJ doctrine of psychological parent which I think is both interesting and important. It obviously bears some relationship to the doctrine of de facto parentage, which I’ve talked about a lot. But it’s also different in important ways. I’m going to skip over this for now as I have a different point I want to make first.
It is worth noting that there is an established test for when a person is a psychological parent:
[T]he legal parent must consent to and foster the relationship between the third party and the child; the third party must have lived with the child; the third pary must perform parental functions for the child to a significant degree; and most important, a parent-child bond must be forged.
(11-12, quoting a NJ supreme court decision.) DM certainly comes close, except for the consent of the second legal parent. But the quote uses the singular rather than the plural.
The point of the doctrine, as the court explains, is to protect children. If an adult has established the relationship described by “psychological parent” then disrupting it may cause harm to the child. This is the possibility the court must consider in order to grant visitation–the question at the best interests stage.
But as we know, parents have rights, too. And among the most important of the parental rights is the ability to control who the child sees. You can see that recognition of a psychological parent impairs the parent’s right.
Mostly this gets dealt with by noting that the parent consents to the formation of the relationship. In other words, the parent exercises that right by allowing the relationship to develop. But this isn’t the case with FD–or at least it may not be. FD may not have consented.
I think the way the court deals with this is to say that there’s nothing that says that both parents have to consent. The consent of one parent could be enough. and the child’s interests outweigh FD’s interests. (Page 15.)
There’s a lot to think about here, but I’m going to stop for now. One thing in particular I wonder about: If the child’s interest overrides the consent of one parent, it wouldn’t override the consent of both?