Two Men, a Woman, and a Baby: A New Jersey Case Sets New Law for 3-Parent Families

It all seemed so idyllic when Kitty Stillufsen described her “modern” family in a July 2011 Marie Claire article. Kitty, her gay best friend, Darren, and his husband, Sam, decided to conceive a child with Kitty’s egg and Darren’s sperm. They also decided that the child would be given Sam’s last name. It was the parties’ intention that all three would be parents. When they planned for the baby’s arrival, the trio took baby classes together, started a registry and began preparing for the child to have two homes.

Fast forward five (5) years -- this modern family is the subject of a Superior Court of New Jersey decision involving issues of custody, parentage, psychological parentage, child support and removal.

While Kitty, Darren and Sam were able to effectively co-parent for the early years of the child’s life, the problems for this family began when Kitty fell in love with a man who resided in California. Because this man had children of his own and shared custody with his ex-wife, he could not feasibly relocate to New Jersey. Because Kitty, Darren and Sam could not agree on how they would share custody if Kitty moved, Darren and Sam filed a custody action.

The court acknowledged the parties’ intentions to form a “tri-parenting” relationship, finding that the undisputed facts supported the conclusion that Sam, the non-biological father, was a psychological parent[1] to the child and stood in parity to legal parents. This reaffirmed the principal in K.A.F that a child may have a psychological parent even where there are already two legal parents.

Although  this family had long intended for the child to have three parents, the court declined to create a legal parent in Sam, holding, “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.” The court also noted that a child having his non-biological father’s last name is not determinative of parentage nor is the fact that the child’s birth certificate bears the non-biological father’s name. Though impliedly recognizing  that it might be in the best interest of the child to have Sam as a third legal parent, , the court did not apply the best interest of the child standard when determining legal parentage. Instead, only a statutory change by the New Jersey legislature to the Parentage Act could designate Sam a legal parent.

In the end, after applying the best interest of the child analysis to the custody factors, the court reached the conclusion that the three parties should have equal legal custody and residential custody of the child. Kitty’s application for removal to the State of California was denied.

The court found that Sam should not be responsible for child support as the child’s biological parents were available to pay child support for the child. Nonetheless, Sam consented to be included in the child support calculation, which the court found was equitable under the circumstances. The court ordered that there be no child support obligation between the parties, given the shared custody arrangement, and that expenses such as medical and educational expenses be split three ways.

For family law practitioners, this case is a fascinating analysis of how New Jersey applies principles of parentage, psychological parentage, the best interest factors and child support guidelines to a family who intended to  give a child an additional parent even prior to the child’s conception.

For individuals seeking to create their own modern family outside of the paradigm of one mother and one father, this case is a cautionary tale of how important it is to think about the unpredictable life events that may adversely affect a family created in this unique way. While all parents face uncertainties in life such as break-ups and relocations, the more parents who are involved, the more complex these issues can become. The impact of some of these complexities can be reduced with legal planning prior to conception and agreements that memorializing the parties’ intentions and, possibly even using adoption as a tool to create three legal parents. Such adoptions are available in states such as California, Oregon, Washington, Massachusetts and Alaska.

[1] An individual who is found to be a psychological parent must establish: 1) legal parent consented to or fostered the parent-like relationship; 2) he/she and the child lived in the same household; 3) he/she assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development without the expectation of financial compensation; and 4) he/she has been in the parental role long enough to have established a bonded, dependent relationship, parental in nature.