Great-Grandparent Maintains Custody Of Child Over Father’s Objection
- February 23, 2015
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In J.F. v. R.M., a 2015 Appellate Division case, the Defendant appealed from a 2014 Family Court Order that denied his child custody application to obtain residential custody of his son from the child’s great-grandparent. The Appellate Division affirmed the decision of the Family Court. The child at issue in this case was born in 2007 when his mother Sue was 15 years old and his father, the Defendant, was 17. The Defendant was not involved in his son’s life until 2011. Following the child’s birth, he and his mother lived with her grandmother, J.F. J.F., who raised her own five children also raised five of her grandchildren who were placed with her by DFYS. Sue, the child’s mother, was placed in J.F.’s care when she was only 8 years old. J.F. became the child’s primary caretaker. Eventually Sue left J.F.’s home and the child remained with J.F. for his entire life. In 2011, J.F. filed a complaint seeking custody of the child, which was granted. She also sought a paternity test to determine that the Defendant was the child’s biological father and to establish child support. At that time the court granted the Defendant open and liberal parenting time with his son. In 2013, the Defendant filed for full custody of the child. J.F. opposed this Motion arguing that there was no basis for a change in custody. The judge denied the Defendant’s request and specified that because there was no allegation of parental unfitness or gross misconduct with respect to the Defendant, J.F. has to demonstrate exceptional circumstances, like having a psychological-parent relationship with the child, in order to retain custody as a non-parent. The judge found that there was no difficulty in finding by a preponderance of the evidence that J.F. had established a parent-child bond with the child. The judge also entered an Order providing that J.F., the Defendant, and Sue were all to share joint legal custody over the child, but J.F. would continue to have residential custody of him. The Defendant appealed. In child custody disputes between two fit parents, “the best interest of the child standard controls because both parents are presumed to be equally entitled to custody . . . But, when the dispute is between a fit parent and a third party, only the fit parent is presumed to be entitled to custody.” Watkins v. Nelson, 163 N.J. 235, 253 748 A.2d 558 (2000). However, “a third party can overcome that presumption by satisfying the standard required for termination of the rights of a non-consenting parent: unfitness, abandonment, gross misconduct, or ‘exceptional circumstances'” Id. at 244-25. The resolution of a custody battle between a parent and a third party, like a grandparent, involves a two-step analysis. First, the application of the parental termination standard or a finding of exceptional circumstances must be established. Zack v. Fiebert, 235 N.J. Super. 424, 432, 563 A.2d 58 (App. Div. 1989). When the exceptional circumstances prong is satisfied, for instance by establishing that the third party has become a psychological parent, the standard for determining custody is the same as between two fit parents: the child’s best interest.” N.J.S.A. 9:2-4(c); Zack, supra, 235 N.J. Super. at 433. The Appellate Division agreed with the reasoning of the Family Court which determined that J.F. was the psychological parent of the child and then that it was within the child’s best interest to remain in J.F.’s custodial care. V.C. v. M.J.B., 163 N.J. 200, 223, 748 A.2d 539 (2000). Child custody and grandparent’s rights cases are among the most emotional and difficult cases in all of family law. If you anticipate that you may want to petition the court for a modification of your current child custody arrangement it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about child custody, parenting time, child support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.