Custody & the Psychological Parent

As far as families are concerned, there is a long-standing legal principle which generally permits parents to raise their children as they see fit without governmental interference. While that typically remains true, our courts are also granted inherent “parens patrie” authority, by which they are charged to protect the welfare and best interests of minor children within their jurisdiction.

In Family Law, these principles do not always comfortably coexist, and will sometimes collide. For purposes of this discussion, I will focus on the interplay between both principles, in terms of a person other than a natural parent who is seeking custody. Such a person is often referred to as a “psychological parent.”

When natural parents compete for custody, our courts are instructed to apply a “best interests of the child” standard. In such cases, the parents initially stand in equipoise; however, when a person other than a natural parent seeks custody the court must initially determine whether “extraordinary circumstances” exist, in which case the court will then apply the “best interests” standard.

The burden of proving extraordinary circumstances is upon the alleged “psychological parent.” Factors used by the court in such regard include whether the natural parent has consented by his or her conduct to the other person’s “parental” status (to include implied consent by lack of involvement in the child’s life), whether the person seeking custody has actually undertaken the day-to-day responsibilities associated with being a parent, and whether a sufficient psychological bond exists between the child and that person. This last issue in particular almost always involves expert evaluations and testimony.

Such disputes are always fact-sensitive and legally challenging. In cases of this sort, is essential that all parties be represented by experienced family law attorneys who are familiar with the issues discussed above.

OG Post by John S. Eory