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									4.1 Parental Rights – Custody and Visitation

Until the mid-1980’s, it was somewhat unusual for gay or lesbian couples to be raising children.
The children being raised by same-sex couples were often the offspring of one of the partner’s
previous heterosexual relationship or marriage. Thus the custody and visitation battles that
ensued in family law courts often pitted two biological parents – one heterosexual and one
homosexual – against each other.

Initially courts found a homosexual parent to be per se unfit based on the models of mental
illness and assumption of criminal behavior” we covered previously in this course. Over time,
however, family law courts moved from the per se unfit model to one examining the overall best
interests of the child.” This highly-subjective standard vests the trial judge with huge discretion,
and the judge’s personal opinions on homosexual parents often infiltrated their resolutions of
custody and visitation matters. For example, it was not unusual for the court to reject all of the
evidence offered from the mental health experts and social workers and instead rely on the
judge’s own view of the highly fact-specific situation to render a decision. The appeals courts’
use of the highly deferential “abuse of discretion” standard of review made it difficult to obtain
reversal of a trial court decision on appeal, especially where the judge’s bias was cloaked in
subtle issues such as credibility findings instead of blatant expressions of anti-gay bias.

Starting in the late 1980’s, however, the so-called “Gay-by Boom” commenced. Aided by access
to artificial insemination and adoption, same-sex couples began forming families of their own.
This in turn added layers of legal complexity to the definition of “family.” Did the sperm donor
or egg donor/surrogate mother have any parental rights or obligations under the law? If so, could
those rights and obligations be modified or eliminated through private law, i.e. contracts between
the donor or surrogate and recipient? If one member of a same-sex couple was the biological
parent, did the other partner have any legal parental rights to the child(ren) they couple decided
to bring into the world together? Could the couple create parental rights through private law
such as contracts, powers of attorney or other similar documents? And what if same-sex couples
terminate their relationships? Who has standing to pursue custody and visitation, and will the
court honor any pre or post-termination agreements which the couple executed?

The uneven development of family law pertaining to same-sex couples and their children has
created chaos in the lives of same-sex couples whose lack of legal relationship recognition and
other factors created very complex cases.

For example, Thomas and Alan are a gay couple. After five years together they decided to have
a child. Thomas supplied the sperm. Alan’s sister Alicia donated her eggs so that the child
would be genetically linked to Alan. A friend of the couple, Kathy, who is married to Kenneth,
agreed to serve as surrogate mother. Kathy’s eggs were fertilized with Thomas’s sperm in a
medical laboratory and the embryos implanted in Kathy’s womb (in vitro fertilization).

Recap of people involved:

Thomas:        Alan’s partner and sperm donor for child

Alan:          Thomas’s partner

Alicia:        Alan’s sister and egg donor

Kathy:         Surrogate mother in whom embryo is implanted

Kenneth:       Kathy’s husband

When Kathy gives birth to the child, what are the respective parental rights and obligations of
Alan, Thomas, Alicia, Kathy and Kenneth? (Note that Alan is not only Thomas’s partner but
also arguably the child’s uncle the child because his sister supplied the eggs). Will the private
contracts the parties entered which detail each person’s rights to the child (or termination of
rights) be respected by the courts, or be discarded as being contrary to public policy that supports
traditional families? Will the courts consider Kenneth (rather than the sperm donor Thomas) to
be a father of Kathy’s child based on the legal assumption in many states that a child born to a
married couple is the child of the husband?

And what if Thomas and Alan live in one state while Alicia and Kathy/Kenneth live in two other
states? Which state’s substantive family law applies? And which state’s court has jurisdiction to
resolve a dispute over the parental rights of all these actors?

Finally, what if after raising the child as co-parents for 10 years, Alan and Thomas separate.
Even if Alicia, Kathy and Kenneth are not involved, what court will have jurisdiction over a
custody and visitation dispute between Alan and Thomas? What difference will it make if
Thomas and Alan had been legally married in Massachusetts, or entered a Civil Union in
Vermont, or were registered domestic partners in Washington State? And what if, after living in
one of these states and obtaining the legal status available for same-sex couples in that state,
Alan and Thomas moved to a state like Ohio that has declared recognition of same-sex
relationships against its public policy and enshrined that policy in the state constitution? Will
Ohio courts allow Thomas and Alan to invoke Ohio’s extensive statutory scheme that governs
resolution of custody and visitation disputes between heterosexual couples? Should Thomas and
Alan have executed other documents, such as a shared custody agreement, when they moved to
Ohio? Would Ohio courts honor such agreements?

These issues have not been uniformly resolved by the courts. As is often the case, the answer to
each question depends on the jurisdiction in which the family lives. Often times the judicial
philosophy of the judge assigned to the case has a major impact on the court’s decision regarding
preliminary jurisdictional and choice of law issues as well as the ultimate resolution of the case.

The materials in this section offer a few snapshots of such litigation but are by no means
comprehensive of the types of disputes involving children of same-sex couples or the manner in
which the courts resolve such disputes.

Visit for a comprehensive overview of
each state’s parenting laws as they affect lesbian and Gay parents and their children.

Lesbian and Gay Parents in Child Custody and Visitation Disputes
Section of Individual Rights and Responsibilities: American Bar Association, Human Rights
Magazine, available at

By Kate Kendell

Nationwide, millions of lesbians and gay men have biological or adoptive children. Despite an
increase in the number of same-sex couples who are having children together through assisted
reproduction, most of these individuals became parents in the context of a prior heterosexual
marriage or relationship before coming out as lesbian or gay. As a result, the other parent in a
child custody dispute involving a lesbian or gay man is likely to be heterosexual, as are the vast
majority of judges, custody evaluators, and other court personnel. Even in states that do not
permit courts to discriminate on the basis of sexual orientation, overcoming judicial stereotypes
about lesbian and gay parents in such a case can be a daunting challenge. In states that openly
condone anti-gay discrimination, the prospects for a gay or lesbian parent to gain custody may be
nil. Currently, there are at least six states in which courts automatically presume that a lesbian or
gay parent is unfit to have custody and at least as many in which courts may prohibit a lesbian or
gay parent from exercising visitation in the presence of a same-sex partner.

Despite the persistence of anti-gay bias in some states, judicial responses to lesbian and gay
parents have improved dramatically over the past four decades. In 1960, an openly gay or lesbian
parent was unlikely to be awarded custody in any state, even if he or she was the primary
caretaker, the more skilled or attentive parent, or the person with whom the child was most
bonded. Not infrequently, lesbian and gay parents were stripped of their parental rights
altogether, simply for being lesbian or gay, or on the grounds that being in a same-sex
relationship meant that one was presumptively violating state sodomy laws.

By the late 1960s, courts in some states began to adopt a more liberal approach that stressed the
importance of evaluating parents as individuals, without regard to their sexual orientation. In
1967, for example, the California Court of Appeal reprimanded a trial court for ruling that a
lesbian mother was presumptively unfit. "We are not saying here that the trial court abused its
discretion," the court of appeal explained. "Rather, we are saying that the trial court failed in its
duty to exercise the very discretion with which it is vested by holding as a matter of law that
petitioner was an unfit mother on the basis that she is a homosexual." Nadler v. Superior Court,
225 Cal. App. 2d 523 (Cal. App. 1967).

Throughout the 1970s and 1980s, courts in most states adopted a similarly child-centered,
evidence-based approach, rejecting categorical assumptions based on a parent's sexual
orientation in favor of an individualized assessment of the child's best interests in each case.
Today, there are few states in which courts are permitted to assume that a gay or lesbian parent is
automatically unfit to be a child's primary custodian. Rather, in most states, a parent's private
consensual adult sexual conduct, regardless of the gender of the parties involved, is generally
considered pertinent to child custody only when there is some evidence that the parent's conduct
is detrimental to the child.

Moreover, contrary to what some might assume, jurisdictions that have adopted this
nondiscriminatory approach are geographically diverse and include Arkansas, Georgia,
Mississippi, Nebraska, Oklahoma, South Carolina, Tennessee, and West Virginia, among others.
In Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002), for example, the Arkansas Supreme
Court struck down the state's sodomy statute and disapprovingly referred to a prior case denying
custody to a lesbian mother because she engaged in "illicit sexual conduct." Id. (citing Thigpen
v. Carpenter, 21 Ark. App. 194, 730 S.W.2d 510 (1987)). Following its decision in Jegley v.
Picado, the Arkansas Supreme Court reversed a trial court decision removing custody from a
mother based on accusations that she was involved in a lesbian relationship, where there was no
evidence of any harm to the children. Taylor v. Taylor, 2003 Ark. LEXIS 213 (2003). Citing the
majority rule in other states, the court held that allegations regarding a parent's sexual orientation
do not justify a change in custody unless there is "concrete proof of likely harm." Id. at *23-24.

Disturbingly, however, while most states no longer permit courts to apply negative presumptions
against lesbian and gay parents, others have failed to curb even the most extreme manifestations
of judicial animus toward lesbians and gay men. In 2002, for example, the Alabama Supreme
Court affirmed a trial court decision denying custody to a lesbian mother. Ex Parte H.H., 830 So.
2d 21 (2002). Chief Justice Moore authored a concurring opinion condemning homosexuality as
an "inherent evil and an act so heinous that it defies one's ability to describe it" and concluded:

The Court of Appeals erred in reversing the judgment of the trial court and holding that there
was no evidence indicating that the mother's homosexual relationship would have a detrimental
effect on the children. From its earliest history, the law of Alabama has consistently condemned
homosexuality. The common law adopted in this State and upon which our laws are premised
likewise declares homosexuality to be a detestable and abominable sin. Homosexual conduct by
its very nature is immoral, and its consequences are inherently destructive to the natural order of
society. Any person who engages in such conduct is presumptively unfit to have custody of
minor children under the established laws of this State. Id. at 37-38.

Similarly, in Bottoms v. Bottoms, 457 S.E.2d 102 (Va. 1995), Sharon Bottoms was raising her
son with her female partner when Sharon's mother sued for custody of her grandson. The trial
judge awarded custody to the grandmother and opined:

I will tell you first that the mother's conduct is illegal. It is a Class 6 felony in the
Commonwealth of Virginia. I will tell you that it is the opinion of this Court that her conduct is
immoral. And it is the opinion of this Court that the conduct of Sharon Bottoms renders her an
unfit parent. Id. at 109 (Keenan, J., dissenting).

The Virginia Supreme Court affirmed, reiterating that the "conduct inherent in lesbianism is
punishable as a . . . felony." Id. at 108.

Lesbian and gay parents also face more subtle forms of discrimination in child custody and
visitation due to their inability to marry. In some states, for example, courts may prohibit
divorced parents from living with an unmarried partner as a condition of custody or visitation.
While this rule may appear neutral with regard to sexual orientation, it is not. As the Indiana
Court of Appeals recognized in striking down a restriction of this type in a recent case, the

practical effect of such a rule is to prohibit lesbian and gay parents "from ever being involved in
a long term relationship that is the equivalent of marriage." Downey v. Muffley, 767 N.E.2d
1014, 1021 (Ind. Ct. App. 2002).

Lesbian and gay parents may also face discrimination for attending religious services that are
affirming of lesbian and gay people or for participating in lesbian and gay political organizations.
In H. v. P., 643 S.W.2d 865 (Mo. App. 1982), the Missouri Court of Appeals prohibited a gay
father from bringing his children to gay political gatherings or to a gay-affirming church.
Similarly, in Marlow v. Marlow, 702 N.E.2d 733, 1998 Ind. App. LEXIS 2052 (Ind. Ct. App.
1998), the Indiana Court of Appeals denied custody to a gay father because of his involvement in
gay and lesbian church groups and with the organization Parents, Families and Friends of
Lesbians and Gays (PFLAG).

In sum, despite enormous progress over the past forty years, lesbian and gay parents still face
discrimination in custody and visitation cases in a number of states. Although the judicial animus
in these cases is directed at adult lesbians and gay men, the true brunt of the discrimination is
borne by their children, who are inevitably harmed by decisions that undermine their love and
respect for their parents and their pride in their families-and, by extension, themselves. As the
court noted in M.P. v. S.P., 169 N.J. Super. 425, 404 A.2d 1256 (N.J. Super. 1979), removing
children from lesbian or gay parents "diminishes their regard for the rule of human behavior,
everywhere accepted, that we do not forsake those to whom we are indebted for love and nurture
merely because they are held in low esteem by others."

Kate Kendell is the executive director of the National Center for Lesbian Rights, located in San
Francisco, California.

    Millard Shawn Damron, Plaintiff and Appellee v. Valerie Damron, Defendant and

                          SUPREME COURT OF NORTH DAKOTA

                     2003 ND 166; 670 N.W.2d 871; 2003 N.D. LEXIS 184

                                   November 13, 2003, Filed

JUDGES: Opinion of the Court by Neumann, Justice. William A. Neumann, Mary Muehlen
Maring, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. I concur in the result. Dale V.

OPINIONBY: William A. Neumann                     Valerie Damron conceded she was involved
                                                  in a homosexual relationship, and she lived
OPINION: [**872] Neumann, Justice.                with her partner in a house with the two
                                                  children. However, she resisted the motion
 [*P1] Valerie Damron appealed from an            for a change of custody, asserting she was
amended judgment granting Millard Shawn           providing "a safe, loving, happy and
Damron's motion for a change in custody of        nurturing environment" for the children and
the parties' two minor children. [**873]          "taking the children out of a current happy,
We hold Shawn Damron failed to meet his           loving, family environment would not be in
burden of proof under N.D.C.C. § 14-09-           the best interests of either child." The trial
06.6(5)(b) for a change of custody within         court concluded the parties' affidavits were
two years of a prior order establishing           sufficient to establish [***3] a prima facie
custody, and we reverse. [***2]                   case justifying modification and scheduled
                                                  an evidentiary hearing. See N.D.C.C. § 14-
I                                                 09-06.6(4).

 [*P2] After a ten-year marriage, Valerie          [*P3] After an evidentiary hearing, the trial
and Shawn Damron were divorced in                 court granted Shawn Damron's motion for a
September 2001 under a stipulated divorce         change of custody, finding:
decree. They agreed to joint custody of their     [Valerie Damron] is engaged in an open
two minor children, with Valerie Damron           homosexual relationship in the home in
receiving primary physical custody of the         which she resides with the children. This
children subject to reasonable and liberal        open homosexual relationship may endanger
visitation by Shawn Damron. In September          the children's emotional health and impair
2002, Shawn Damron moved for a change of          the children's emotional development. We
custody under N.D.C.C. § 14-09-06.6(5)(b).        will not know the answer to either of these
Relying primarily on Jacobson v. Jacobson,        questions until the children are older at
314 N.W.2d 78 (N.D. 1981), Shawn                  which time it will be too late. The
Damron alleged he was entitled to a change        homosexual relationship of [Valerie
of custody because Valerie Damron had             Damron] is a relationship which under the
begun living with another woman in a              existing state of the law can never be a legal
homosexual relationship after the divorce.        relationship. Although there is no question

that Valerie is a fit parent, because of the       view of the law. She also argues
mores of today's society, because Valerie is       modification of custody based on her sexual
engaged in a homosexual relationship in the        orientation violates the federal and state
home in which she resides with the children,       constitutions.
and because of the lack of legal recognition
of the status of a homosexual relationship,         [*P5] A trial court's decision to modify
the best interest of the children would be         custody is a finding of fact subject to the
better served by placing custody of the            clearly erroneous standard of review. In re
children with [Shawn Damron]. [***4]               K.M.G., 2000 ND 50, P4, 607 N.W.2d 248.
(Quoting and applying Jacobson v.                  A finding of fact is clearly erroneous if there
Jacobson, 314 N.W.2d 78, 79 (ND 1981)).            is no evidence to support it, if the reviewing
                                                   court is left with a definite and firm
                                                   conviction a mistake has been made, or if
                                                   the finding is induced by an erroneous view
                                                   of the law. Id.
It is not the function of the court to use these
children as the tool of enlightenment to            [*P6] We have recognized a doctrinal
convince society of the error of its beliefs.      aversion to changing the custody of a happy
Rather, the function of the court in matters       child who has been living with one parent,
of child custody is to look solely to the best     and the burden on a noncustodial parent
interest of the particular children in the case    seeking a change of custody is "'daunting'"
before the Court. (Quoting and applying            and "'arduous.'" Lovin v. Lovin, 1997 ND
Johnson v. Schlotman, 502 N.W.2d 831 (ND           55, PP16, 18, 561 N.W.2d 612 (quoting
1993)). This Court cannot modify a prior           Alvarez v. Carlson, 524 N.W.2d 584, 590
custody order within two years following the       (N.D. 1994)). In Lovin, at P17 (quoting
date of entry of an order unless there is a        Alvarez, at 589), we said "'maintaining
finding that modification is necessary to          stability and continuity in the child's life,
serve the best interests of the children and       without [***6] harm to the child, is the
primarily that the children's present              most compelling factor when considering a
environment may endanger the children's            motion for change of custody.'"
physical or emotional health, or impair the
children's emotional development. The               [*P7] Generally, a party seeking to modify
modification of the judgment by transferring       an existing custody determination must
primary physical care, custody and control         establish a significant change in
from Valerie to [Shawn Damron] is                  circumstances which adversely affects the
necessary to serve the best interests of the       child and requires a change in custody to
children in that the children's present            further the best interests of the child. In re
environment may endanger the children's            K.M.G., 2000 ND 50, P4, 607 N.W.2d 248.
 [**874] emotional health or impair the            However, N.D.C.C. § 14-09-06.6(5), which
children's emotional development.                  was enacted in 1997, limits custody
                                                   modifications within two years after a prior
II                                                 custody determination. State ex rel. D.D. v.
                                                   G.K., 2000 ND 101, P5, 611 N.W.2d 179;
 [*P4] On appeal, [***5] Valerie                   K.M.G., at P5. We have recognized "the
Damron argues the trial court's modification       legislature enacted more rigorous
of custody was not supported by the                requirements for motions brought less than
evidence and was induced by an erroneous

two years after a determination to allow       presumption of harm to children living in a
'something of a moratorium for the family'     lesbian household and eliminated any
during the two-year period after a custody     requirement for evidence of actual or
determination." D.D., at P5 (quoting           potential harm to the children. To the extent
Hearing on S.B. 2167 Before the Senate         Jacobson can be read as creating such a
Judiciary Comm., 55th N.D. Legis. Sess.        presumption, it is overruled.
(Jan. 21, 1997) (testimony of Sherry Mills
Moore, Chair of the Family Law Task             [*P10] Other courts generally have
Force)). The purpose of the moratorium is to   recognized that, in the absence of evidence
spare children the "painful, disruptive,       of actual or potential harm to the children, a
and [***7] destabilizing" effects of repeat    parent's homosexual relationship, by itself,
custody litigation. See Quarne v. Quarne,      is not determinative of custody. See S.N.E.
1999 ND 188, P9, 601 N.W.2d 256 (quoting       v. R.L.B., 699 P.2d 875, 878-79 (Ala. 1985)
Hearing on S.B. 2167 Before the Senate         (reversing custody modification because no
Judiciary Comm., 55th N.D. Legis. Sess.        suggestion mother's homosexual relationship
(Jan. 21, 1997) (testimony of Sherry Mills     adversely affected child); Jacoby v. Jacoby,
Moore, Chair of Family Law Task Force)).       763 S.2d 410, 413 (Fla. Ct. App. 2000)
                                               (stating court may not consider mother's
 [*P8] Section 14-09-06.6, N.D.C.C.,           sexual orientation in deciding custody unless
provides, in part:                             there is evidence conduct has direct adverse
5. The court may not modify a prior custody    impact on children, and the mere possibility
order within the two-year period following     of negative impact on children is not
the date of entry of an order establishing     enough); In re Marriage of R.S., 286 Ill.
custody unless the court finds the             App. 3d 1046, 677 N.E.2d 1297, 1301-03,
modification is necessary to serve the best    222 Ill. Dec. 498 (Ill. Ct. App. 1996)
interest of the child and: a. The persistent   (reversing custody modification based on
and willful denial or interference with        mother's homosexual relationship because
visitation; b. The child's present             no evidence [***9] children adversely
environment may endanger the child's           affected by relationship); D.H. v. J.H., 418
physical or emotional health or impair the     N.E.2d 286, 293 (Ind. Ct. App. 1981)
child's emotional development; or c. The       (stating homosexual relationship standing
primary physical care of the child has         alone without evidence of any adverse affect
changed to the other parent for longer than    upon children does not render homosexual
six months. . . . .                            parent unfit as matter of law to have
                                               custody); Hassenstab v. Hassenstab, 6 Neb.
                                               App. 13, 570 N.W.2d 368, 372-73 (Neb. Ct.
8. Upon a motion to modify custody under       App. 1997) (affirming refusal to modify
this section, the burden of proof is on the    custody based on mother's homosexual
moving party.                                  relationship in absence of evidence child
                                               was directly exposed to sexual activity or
                                               harmed by relationship); Inscoe v. Inscoe,
                                               121 Ohio App. 3d 396, 700 N.E.2d 70, 82
[**875]     [*P9] Here, Shawn Damron           (Ohio Ct. App. 1997) (allowing trial court to
brought a motion to modify custody under       consider parent's sexual orientation only if it
N.D.C.C. § 14-09-06.6(5)(b) [***8] ,           has direct adverse impact on children); Fox
claiming Jacobson effectively created a        v. Fox, 1994 OK 151, 1995 OK 87, 904

P.2d 66, 69-70 (Okl. 1995) (reversing             impaired their emotional development
custody modification based on mother's            required reversal of order changing
homosexual relationship because no                custody); [**876] O'Neill v. O'Neill,
evidence relationship adversely affected          2000 ND 200, P8, 619 N.W.2d 855
child); Stroman v. Williams, 291 S.C. 376,        (allegations demonstrating a custodial
353 S.E.2d 704, 705-06 (S.C. Ct. App.             environment which may endanger children's
1987) (affirming refusal to modify custody        physical or mental health are sufficient to
based on mother's homosexual relationship         raise a prima facie case for change of
in absence of evidence child's welfare            custody); Quarne, 1999 ND 188, P12, 601
adversely [***10] affected); Van Driel v.         N.W.2d 256 (child abuse constitutes an
Van Driel, 525 N.W.2d 37, 39-40 (S.D.             environment which endangers the child's
1994) (affirming award of custody to              physical or mental health and is, as a matter
homosexual mother where no evidence of            of law, a material change of circumstances
adverse affect on children); Matter of            warranting a change of custody under
Marriage of Cabalquinto, 100 Wn.2d 325,           N.D.C.C. § 14-09-06.6(5)); Holtz v. Holtz,
669 P.2d 886, 888 (Wash. 1983) (stating           1999 ND 105, P17, 595 N.W.2d 1
homosexuality in and of itself is not a bar to    (endangerment of child's physical or
custody or to reasonable rights of visitation).   emotional health or impairment of child's
                                                  emotional development is material change
 [*P11] Under N.D.C.C. § 14-09-06.6(5)(b)         of circumstances warranting
and (8), Shawn Damron, as the party               change [***12] of custody).
moving for a change of custody within two
years after entry of an order establishing         [*P12] HN8 Under N.D.C.C. § 14-09-
custody, had the burden to show                   06.6(5)(b), we hold a custodial parent's
modification was necessary to serve the best      homosexual household is not grounds for
interests of the children and to show the         modifying custody within two years of a
children's present environment may                prior custody order in the absence of
endanger their physical or emotional health       evidence that environment endangers or
or impair their emotional development. Our        potentially endangers the children's physical
cases dealing with motions to modify              or emotional health or impairs their
custody generally have recognized that in         emotional development.
order to modify custody there must be some
evidence the custodial parent's custodial          [*P13] Here, the trial court found Valerie
environment may endanger the children. See        Damron was a fit parent, but effectively
In re Thompson, 2003 ND 61, P12, 659              ruled that Jacobson created a presumption of
N.W.2d 864 (allegations of physical and           harm to children living in a lesbian
emotional neglect of children sufficient to       household, and Shawn Damron presented no
establish prima facie case for [***11]            evidence the children's present environment
evidentiary hearing); Engh v. Engh 2003           may endanger their physical or emotional
ND 5, PP7-9, 655 N.W.2d 712 (allegations          health or impair their emotional
of endangerment to emotional and physical         development. There is evidence the children
health of children sufficient to establish        are doing well in Valerie Damron's custody.
prima facie case for evidentiary hearing, but     Shawn Damron does not dispute the oldest
trial court's failure to make finding that        child is doing well physically, academically,
custodial father had endangered the               and socially, and he has not noticed any
children's physical or emotional health or        adverse impact on the youngest child.

Although Shawn Damron testified Valerie        consider issues not necessary to
Damron's homosexual relationship "sets the     determination of appeal).
wrong moral character for my children," he
presented no evidence that the relationship     [*P14] Both Shawn and Valerie Damron
was causing actual or potential harm to the    seek attorney fees for these proceedings. We
children. We hold [***13] Shawn                conclude neither party is entitled to attorney
Damron failed to meet his burden of proof to   fees.
justify a change in custody under N.D.C.C.
§ 14-09-06.6(5)(b). There is no evidence to    [*P15] We reverse the amended judgment.
support the trial court's modification of
custody, and we therefore conclude the         [*P16] William A. Neumann
court's modification of custody is clearly     Mary Muehlen Maring
erroneous. Because of our conclusion, we do    Carol Ronning Kapsner
not address Valerie Damron's argument the      Gerald W. VandeWalle, C.J.
modification of custody based on her sexual
orientation violates the federal and state     I concur in the result.
constitutions. See Kaler v. Kraemer, 1999      Dale V. Sandstrom
ND 237, P22, 603 N.W.2d 698 (declining to

V.C., Plaintiff-Respondent and Cross-Appellant, v. M.J.B., Defendant-Appellant and

                                     A-111, A-126 September Term 1998

                                   SUPREME COURT OF NEW JERSEY

                             163 N.J. 200; 748 A.2d 539; 2000 N.J. LEXIS 359

                                           October 25, 1999, Argued
                                            April 6, 2000, Decided

                                                           - - - - - - End Footnotes- - - - - - - - -
JUDGES: The opinion of the court was
delivered by LONG, J. CHIEF JUSTICE                        I
PORITZ and JUSTICES GARIBALDI,                             The following facts were established at trial.
STEIN, COLEMAN, and VERNIERO join                          V.C. and M.J.B., who are lesbians, met in
in JUSTICE LONG'S opinion. JUSTICE                         1992 and began dating on July 4, 1993. On
O'HERN filed a separate concurring                         July 9, 1993, M.J.B. went to see a fertility
opinion. JUSTICE LONG filed a separate                     specialist to begin artificial insemination
concurring opinion.                                        procedures. She prepared for that
                                                           appointment by recording her body
In this case, we are called on to determine                temperature for eight to nine months prior
what legal standard applies to a third party's             for purposes of tracking her ovulation
claim to joint custody and visitation of her               schedule. She had been planning to be
former domestic partner's biological                       artificially inseminated since late 1980.
children, with whom she lived in a familial                According to M.J.B., she made the final
 [**542] setting and in respect of whom                    decision to become pregnant independently
she claims to have functioned as a                         and before beginning her relationship with
psychological parent. Although the case                    V.C. Two individuals who knew M.J.B.
arises in the context of a lesbian couple, the             before she began dating V.C., confirmed
standard we enunciate is applicable to all                 that M.J.B. had been planning to become
persons who have willingly, and with the                   pregnant through artificial insemination for
 [*206] approval of the legal parent,                      years prior to the beginning of the parties'
undertaken the duties of a parent to a                     relationship.
child [***14] not related by blood or
adoption. n1                                               According to V.C., early in their
                                                           relationship, the two discussed having
- - - - - - - - - - Footnotes - - - - - - - - - -          children. [***15] However, V.C. did not
                                                           become aware of M.J.B.'s visits with the
n1 For the purpose of this opinion the term                specialist and her decision to have a baby by
legal parent encompasses biological and                    artificial insemination until September 1993.
adoptive parents.                                          In fact, the doctor's records of M.J.B.'s first

appointment indicate that M.J.B. was single
and that she "desires children."                 The parties opened joint bank accounts for
                                                 their household expenses, and prepared
Nonetheless, V.C. claimed that the parties       wills, powers of attorney, and named each
jointly decided to have children and that she    other as the beneficiary for their respective
and M.J.B. jointly researched and decided        life insurance policies. At some point, the
which sperm donor they should use. M.J.B.        parties also opened savings accounts for the
acknowledged that she consulted V.C. on          children, and named V.C. as custodian for
the issue but maintained that she                one account and M.J.B. as custodian for the
individually made the final choice about         other.
which sperm donor to use.
                                                 The parties also decided to have the children
Between November 1993 and February               call M.J.B. "Mommy" and V.C. "Meema."
1994, M.J.B. underwent several                   M.J.B. conceded that she referred
insemination procedures. V.C. attended at         [**543] to V.C. as a "mother" of the
least two of those sessions. In December         children. In addition, M. [***17] J.B.
1993, V.C. moved into M.J.B.'s apartment.        supported the notion, both publicly and
Two months later, on February 7, 1994, the       privately, that during the twenty-three
doctor [*207] informed M.J.B. that she was       months after the children were born, the
pregnant. M.J.B. called V.C. at work to tell     parties and the children functioned as a
her the good news. Eventually, M.J.B. was        family unit. M.J.B. sent cards and letters to
informed that she was having twins.              V.C. that referred to V.C. as the children's
                                                 mother, and indicated that the four of them
During M.J.B.'s pregnancy, both M.J.B. and       were a family. The children also gave cards
V.C. prepared for the birth of the twins by      to V.C. that indicated that V.C. was their
attending pre-natal and Lamaze classes. In       mother. M.J.B. encouraged a relationship
April 1994, the parties moved to a larger        between V.C. and the children and sought to
apartment to accommodate the                     create a "happy, cohesive environment for
pending [***16] births. V.C. contended           the [*208] children." M.J.B. admitted that,
that during that time they jointly decided on    when the parties' relationship was intact, she
the children's names. M.J.B. admitted            sometimes thought of the four of them as a
consulting V.C., but maintained that she         family. However, although M.J.B.
made the final decision regarding names.         sometimes considered the children "theirs,"
                                                 other times she considered them "hers".
The children were born on September 29,
1994. V.C. took M.J.B. to the hospital and       M.J.B. agreed that both parties cared for the
she was present in the delivery room at the      children but insisted that she made
birth of the children. At the hospital, the      substantive decisions regarding their lives.
nurses and staff treated V.C. as if she were a   For instance, M.J.B. maintained that she
mother. Immediately following the birth, the     independently researched and made the final
nurses gave one child to M.J.B. to hold and      decisions regarding the children's
the other to V.C., and took pictures of the      pediatrician and day care center. V.C.
four of them together. After the children        countered that she was equally involved in
were born, M.J.B. took a three-month             all decision-making regarding the children.
maternity leave and V.C. took a three-week       Specifically, V.C. claimed that she
vacation.                                        participated in choosing a day [***18]

care center for the children, and it is clear
that M.J.B. brought V.C. to visit the center     Together the parties purchased a home in
she selected prior to making a final decision.   February 1995. Later that year, V.C. asked
                                                 M.J.B. to marry her, and M.J.B. accepted. In
M.J.B. acknowledged that V.C. assumed            July 1995, the parties held a commitment
substantial responsibility for the children,     ceremony where they were "married." At the
but maintained that V.C. was a mere helper       ceremony, V.C., M.J.B. and the twins were
and not a co-parent. However, according to       blessed as a "family."
V.C., she acted as a co-parent to the children
and had equal parenting responsibility.          Together, V.C. and M.J.B. joined the
Indeed, M.J.B. listed V.C. as the "other         Lambda family organization, made up of
mother" on the children's pediatrician and       lesbian and gay parents or expectant parents.
day care registration forms. M.J.B. also gave    The Lambda family organization is a social
V.C. medical power of attorney over the          group in which children become aware of
children.                                        other families that also have gay and lesbian
                                                 parents. V.C. and M.J.B., together with the
A number of witnesses testified about their      children, attended at least ten Lambda
observations of the parties' relationship and    functions.
V.C.'s role in the children's lives. V.C.'s
mother testified that M.J.B. told her that       Additionally, as a group, [***20] V.C.,
V.C. and M.J.B. would be co-parents to the       M.J.B. and the twins attended family
children and that the parties made a joint       functions, holidays, and birthdays.
decision to have children. In addition, she      According to V.C., she did not attend family
observed that M.J.B., V.C. and the children      functions with M.J.B.'s family because they
functioned as a family. Likewise, L.M., a        were unhappy about M.J.B.'s sexual
co-worker and friend of M.J.B., testified that   orientation. However, V.C. claimed that
she spent time with the parties before,          M.J.B. had a [**544] very good
during and after M.J.B.'s pregnancy, and         relationship with V.C.'s mother, S.D., and
that she regarded the parties as equal co-       that the children were very close to V.C.'s
parents to the children.                         family. Apparently, the children referred to
                                                 S.D. as "Grandma," and to V.C.'s
Another co-worker and friend of M.               grandmother, as "great-grandma."
 [***19] J.B., D.B., also testified that
V.C. was a co-parent to the children. In         During their relationship, the couple
addition, D.B. revealed that M.J.B. planned      discussed both changing the twins' surname
to continue the relationship between V.C.        to a hyphenated form of the women's names
and the children after the breakup, as long as   and the possibility of V.C. adopting the
V.C. contributed money toward the                children. M.J.B. testified that the parties
children's expenses. However, another            considered adoption and in June 1996
witness, A.R., [*209] indicated that V.C.        consulted an attorney on the subject. M.J.B.
was minimally involved in taking care of the     paid a two thousand dollar retainer, and the
children, but acknowledged that V.C. had an      attorney advised the parties to get letters
important role in the twins' lives. Testifying   from family and friends indicating that the
for M.J.B., both A.R. and M.I. stated that       parties and the twins functioned as a family.
they regarded M.J.B. as the children's           The parties never actually attempted to get
primary caretaker.                               the letters or proceed with the adoption.

V.C. alleged that M.J.B. was willing to go        At trial, expert witnesses appeared for both
through with the adoption even after the          parties. Dr. Allwyn J. Levine testified on
parties split.                                    behalf of V.C., and Dr. David Brodzinsky
                                                  testified on behalf of M.J.B. Both experts
 [*210] Just two months later, in August          arrived at similar conclusions after having
1996, M.J.B. ended the relationship. The          examined the women individually and with
parties [***21] then took turns living in         the children, and after examining the
the house with the children until November        children separately.
1996. In December 1996, V.C. moved out.
M.J.B. permitted V.C. to visit with the           Dr. Levine concluded that both children
children until May 1997. During that time,        view V.C. as a maternal figure and that V.C.
V.C. spent approximately every other              regards herself as one of the children's
weekend with the children, and contributed        mothers. "Because the children were
money toward the household expenses.              basically parented from birth" by V.C. and
                                                  M.J.B. "until they physically separated," Dr.
In May 1997, M.J.B. went away on business         Levine concluded that the children view the
and left the children with V.C. for two           parties "as inter-changeable maternal
weeks. However, later that month, M.J.B.          mothering objects" and "have established a
refused to continue V.C.'s visitation with the    maternal bond with both of the women."
children, and at some point, M.J.B. stopped
accepting V.C.'s money. M.J.B. asserted that       [*211] Dr. Levine likened the parties'
she did not want to continue the children's       relationship to a heterosexual marriage.
contact with V.C. because she believed that       Consequently, the children would be
V.C. was not properly caring for the              affected by the loss of V.C. just as if they
children, and that the children were              had been denied contact with their father
suffering distress from continued contact         after a divorce. Dr. Levine explained that the
with V.C. Both parties became involved            children would benefit from continued
with new partners after the dissolution of        contact with V.C. because they had a
their relationship. Eventually, V.C. filed this   bonded relationship with her. Dr. Levine
complaint for joint legal custody. n2             further noted that if the children felt
                                                  abandoned by V.C., they might also feel
- - - - Footnotes - - - - - - - - - - - - - - -   unnecessary guilt and assume [***23] that
                                                  they made V.C. angry or somehow caused
                                                  the parties' separation. Although the doctor
n2 As noted by scholars, "Joint custody can       believed that the children could adapt to the
be either joint legal and joint physical          loss of V.C., he indicated that the long-term
custody or joint legal custody with one           effects were unknown. Furthermore, Dr.
parent having primary residential custody.        Levine indicated that the animosity between
Legal custody refers to decision making."         V.C. and M.J.B. could harm the children,
Gary N. Skoloff & Laurence J. Cutler, New         but surmised that counseling could lessen
Jersey Family Law Practice, Custody § 4.2B        the parties' animosity.
(8th ed. 1996).
                                                  Likewise, Dr. Brodzinsky concluded that
                                                  V.C. and the children enjoyed a bonded
- - - - End Footnotes- - - - - - - - [***22]      relationship that benefitted both children.
                                                  Dr. Brodzinsky determined that the children

[**545]     regarded V.C. as a member of          can [***25] nurture them."
their family. The doctor believed that it was
normal for young children to feel that way        The trial court denied V.C.'s applications for
about a person with whom they have spent          joint legal custody and visitation because it
considerable time. However, Dr. Brodzinsky        concluded that she failed to establish that the
noted that as children "get older, family         bonded relationship she enjoyed with the
becomes more specifically tied . . . to           children had risen to the level of
biological connections." The doctor's report      psychological or de facto parenthood. In so
indicated that, when asked who their mother       doing, the court gave significant weight to
was, the children did not immediately point       the fact that the decision to have children
to V.C., but upon further inquiry agreed that     was M.J.B.'s, and not a joint decision
V.C. was their mother. The doctor further         between M.J.B. and V.C.
noted that the children viewed M.J.B's new
partner as a current member of their family.      Finding that V.C. did not qualify as a
Dr. Brodzinsky expressed concern that, if         psychological parent to the children, the trial
visitation were permitted, [***24] the            court opined that it would "only be able to
parties' animosity would negatively impact        consider [V.C.'s] petition for custody if [she]
the children. The doctor, however,                was able [to] prove [M.J.B.] to be an unfit
acknowledged that counseling would reduce         parent." Because V.C. did not allege that
the level of animosity between the parties.       M.J.B. was an unfit parent, the trial court
Dr. Brodzinsky further recognized that the        held that V.C. lacked standing to petition for
children would suffer some short-term stress      joint legal custody. The court also denied
from the loss of V.C. but would likely            V.C.'s application for visitation, determining
recover in time.                                  that even a step-parent would not be granted
                                                  such visitation except for equitable reasons,
In contrast to Dr. Levine's opinion, Dr.          not present here. Further, it resolved that
Brodzinsky believed that the loss of V.C.         visitation was not in the children's best
was not akin to the loss of a parent in a         interests because M.J.B. harbored animosity
heterosexual divorce. The doctor explained        toward V.C. that would "inevitably pass[]
that societal views [*212] foster the             along to the children." According
expectation that a child and a parent will        to [***26] the trial court, the case might
continue their relationship after a divorce,      have been different had V.C. "enjoyed a
but that no similar expectation would exist       longer and more irreplaceable relationship
for the children's relationship with V.C.         with the children . . . ." Upon the entry of
Still, Dr. Brodzinsky testified that "the ideal   judgment, V.C. appealed.
situation is that [M.J.B.] is allowed to get on
with her life as she wants, but to the extent     On March 5, 1999, an Appellate Division
possible that . . . these children be able at     panel decided the case in three separate
times to have some contact with [V.C.]            opinions. V.C. v. M.J.B., 319 N.J. Super.
who's important to them." Assuming that the       103, 725 A.2d 13. [*213] Judge Stern
parties could maintain a reasonably               authored the majority opinion, which
amicable relationship, Dr. Brodzinsky felt        affirmed the denial of V.C.'s application for
that the children "would probably benefit         joint legal custody but reversed the denial of
from ongoing contact [with V.C.] as they          her petition for visitation. Id. at 106. In so
would with any person with whom they              doing, the court concluded that V.C. had
have a good solid relationship that               established a parent-like relationship and

"stood in the shoes of a parent." Id. at 119.      and accelerated the appeals.
The majority analyzed the case under the
best interests of the child standard, and,         [***28]        [*214] II
based on the record before it, determined
that joint legal custody was not in the best       On appeal, M.J.B. argues that we lack
interests of the children. Id. at 119. The trial   subject matter jurisdiction to consider V.C.'s
court's judgment denying V.C.'s petition for       custody and visitation claims because the
joint custody was affirmed. V.C., 319 N.J.         legislative scheme and the common law do
Super. at 119-20.                                  not recognize her rights; that V.C. lacks
                                                   standing to claim custody and visitation
 [**546] As to visitation, although                because she has not asserted parental
recognizing that animosity between the             unfitness; that V.C.'s application intrudes on
parties is an important factor in the best         M.J.B.'s basic liberty interest in raising her
interests test, the majority concluded that        children as she sees fit; that protection of the
M.J.B. cannot deprive V.C. or the                  children from serious harm is the only basis
twins [***27] of visitation simply because         for governmental intervention into her
M.J.B. harbors negative feelings toward            private life with her children; that she has an
V.C. V.C., 319 N.J. Super. at 118. Relying         absolute right to decide with whom her
on the experts' testimony, the majority            children will associate; that V.C. was the
concluded that V.C.'s continued contact with       equivalent of a nanny whose status deserves
the children is in their best interests;           no special acknowledgment; that she did not
therefore, it reversed the judgment denying        give consent to V.C.'s role as a "parent"; and
V.C.'s petition for visitation and remanded        finally that the Appellate Division erred in
for proceedings to establish a visitation          substituting its fact-finding for that of the
schedule. V.C., 319 N.J. Super. at 119-20.         trial court.

The two partial dissenters staked out              V.C. counters that she qualifies as a parent
opposite positions on the issues. Judge            under N.J.S.A. 9:2-13(f); that she is a
Braithwaite determined that V.C. does not          psychological parent n3 of the twins thus
qualify as a psychological parent and thus         justifying the invocation of the court's
would have denied both joint custody and           parens patriae power to sustain that
visitation. Judge Wecker concluded that            relationship; that in such circumstances the
V.C. qualifies as a psychological parent and       best interests test applies; [***29] and,
that the best interests standard necessarily       on her cross-appeal, that denial of joint legal
applies to both visitation and custody. Id. at     custody was erroneous because of her status
137. She would have granted visitation on          as a de facto parent.
the record before her and remanded for a
best interests hearing on joint custody.           - - - - - Footnotes - - - - - - - - - - - - - - -

An order for visitation was established on         n3 The terms psychological parent, de facto
March 26, 1999. Both M.J.B. and V.C.               parent, and functional parent are used
appealed as of right from the dissents             interchangeably in this opinion to reflect
discussed above. R. 2:2-1(a)(2). M.J.B. also       their use in the various cases, statutes, and
moved for a stay.                                  articles cited. Psychological parent is the
                                                   preferred term.
Thereafter, we denied M.J.B.'s stay motion

- - - End Footnotes- - - - - - - - - - - - - -   whether a former unmarried domestic
                                                 partner has standing to seek custody and
Various amici filed briefs supporting the        visitation with her former partner's
arguments advanced by V.C. including the         biological children. That is not to say,
American Civil Liberties Union of New            however, that the current statutory scheme
Jersey, the American Civil Liberties Union       dealing with issues of custody and visitation
Foundation, the Lambda Legal Defense and         does not provide some guiding principles.
Education Fund, the National Center for          N.J.S.A. 9:2-3 prescribes:
Lesbian Rights, and the Lambda Families of
New Jersey. Those amici (collectively            When the parents of a [***31] minor
referred to as the "ACLU") are non-profit        child live separately, or are about to do so,
organizations that are committed, among          the Superior Court, in an action brought by
other things, to defending the civil liberties   either parent, shall have the same power to
and rights of gay and lesbian families and       make judgments or orders concerning care,
individuals. According to the ACLU, it           custody, education and maintenance as
submitted a brief [*215] "primarily because      concerning a child whose parents are
it is concerned about M.J.B.'s sweeping          divorced. . . .
attack on the de facto parent doctrine, which
has [***30] long served to protect               Further, N.J.S.A. 9:2-4 provides, in part, that
children in this State by protecting their       the Legislature finds and declares that it is in
important relationships with adults who          the public policy of this State to assure
function as parents to them."                    minor children of frequent and continuing
                                                 contact with both parents after the parents
In addition, we granted Concerned Women          have separated or dissolved their marriage
For America ("CWA") the right to appear as       and that it is in the public interest to
amicus curiae in order to argue its case         encourage parents to share the rights and
against a "heavy judicial hand [**547]           responsibilities of child rearing in order to
favoring the homosexual agenda." CWA             effect this policy. In any proceeding
asserts that the courts "are deliberately        involving the custody of a minor child, the
misconstruing the law to reach a politically     rights of both parents shall be equal . . . .
correct result." According to CWA, the
Legislature is the appropriate forum for this     [*216] By that scheme, the Legislature has
discussion.                                      expressed the view that children should not
                                                 generally be denied continuing contact with
III                                              parents after the relationship between the
                                                 parties ends.
We turn first to M.J.B.'s claim that we lack
jurisdiction and that V.C. lacks standing to      N.J.S.A. 9:2-13(f) provides that "the word
apply for joint custody and visitation           "parent," when not otherwise described by
because neither the statutes nor the common      the context, means a natural parent or parent
law acknowledge the existence of such a          by previous adoption." M. [***32] J.B.
cause of action by a third party.                argues that because V.C. is not a natural or
                                                 adoptive parent, we lack jurisdiction to
A                                                consider her claims. That is an incomplete
                                                 interpretation of the Act. Although the
There are no statutes explicitly addressing      statutory definition of parent focuses on

natural and adoptive parents, it also includes      or visitation to "any interested third-party . .
the phrase, "when not otherwise described           . upon such conditions and limitations as
by the context." That language evinces a            [the court] deems equitable"); Haw. Rev.
legislative intent to leave open the                Stat. Ann. § 571-46(2), (7)(West
possibility that individuals other than natural     1999)(granting standing to third persons for
or adoptive parents may qualify as                  custody when in the best interests of child
"parents," depending on the circumstances.          and granting de facto parent prima facie
n4                                                  award of custody; visitation standing
                                                    granted to "any person interested in the
- - - - - Footnotes - - - - - - - - - - - - - - -   welfare of the child" in court's discretion);
                                                    Mass. Gen. Laws Ann. ch. 208, § 28 (West
                                                    1999) (granting standing to any third party
n4 We note that all fifty states, to one extent     to petition for custody if court deems such
or another, grant statutory standing to third       award expedient or in child's best interest);
parties to petition for custody and/or              Or. Rev. Stat. § 109.119(1)(granting
visitation of the biological or adoptive            standing to "any person
children of others. Those statutes reveal a
full spectrum of approaches. Examples are:          . . . who has established emotional ties" for
Ark. Code Ann. § 9-13-102 to -103 (Michie           either custody or visitation); Va. Code Ann.
1999)(granting reasonable visitation rights         § 16.1-241(A)(Michie 1999)(granting
to siblings, grandparents and great-                standing to "any party with a legitimate
grandparents); 750 Ill. Comp. Stat. Ann. §          interest" to petition for visitation or custody
5/607 (b)(1)(West 1999)(granting standing           of child).
for visitation to grandparent, great-
grandparent, or sibling if in child's best          - - - End Footnotes- - - - - - - - - - - - - -
interests); Mo. Rev. Stat. § 452.402 (West
2000) (standing for grandparents to petition        [***33]
for visitation); Neb. Rev. Stat. Ann. § 43-
1802 (1999) (granting standing to                    [*217] [**548] If a statute is clear and
grandparents for visitation in certain              unambiguous on its face, the court must
circumstances); N.H. Rev. Stat. Ann. §              determine the intent of the Legislature from
458:17-d (1999) (granting grandparents              its plain meaning. Franklin Tower One,
standing to petition for visitation); N.Y.          L.L.C. v. N.M., 157 N.J. 602, 613, 725 A.2d
Dom. Rel. Law § 72 (McKinney                        1104 (1999) (citing Board of Educ. v.
1999)(standing for grandparents to petition         Neptune Township Educ. Ass'n, 144 N.J. 16,
for visitation if in child's best interests);       25, 675 A.2d 611 (1996) (quoting State v.
N.D. Cent. Code § 14-09-05.1                        Butler, 89 N.J. 220, 226, 445 A.2d 399
(1999)(standing to grandparents for                 (1982))). Moreover, statutory "language
visitation unless not in the child's best           must not, if reasonably avoidable, be found
interests).                                         to be inoperative, superfluous or
                                                    meaningless." In re Sussex County Mun.
The more expansive statutes allow third             Utils. Auth., 198 N.J. Super. 214, 217, 486
parties, without regard to blood relationship,      A.2d 932 (App. Div. 1985) (quoting
to seek both custody and visitation.                Hackensack Bd. of Educ. v. Hackensack, 63
Examples include: Conn. Gen. Stat. Ann. §           N.J. Super. 560, 569, 165 A.2d 33 (App.
46b-57, - 59 (West 1999)(allowing custody           Div. 1960)).

                                                    Nelson, 163 N.J. 235, 245, 748 A.2d 558,
By including the words "when not otherwise          563, 2000 N.J. LEXIS 361, *24 (2000);
described by the context" in the statute, the       Matter of D.T., 200 N.J. Super. 171, 176,
Legislature obviously envisioned a case             491 A.2d 7 (App. Div. 1985). Various
where the specific relationship between a           constitutional provisions have been cited as
child and a person not specifically                 the source of that right, which is deeply
denominated by the statute would qualify as         imbedded in our collective consciousness
"parental" under the scheme of Title 9.             and traditions. Stanley v. Illinois, 405 U.S.
Although the Legislature may not have               645, 651, 92 S. Ct. 1208, 1213, 31 L. Ed. 2d
considered the precise case before us, it is        551, 559 (1972) (citing Skinner v.
hard to imagine what it could have had in           Oklahoma, 316 U.S. 535, 541, 62 S. Ct.
mind in adding [***34] the "context"                1110, 1112, 86 L. Ed. 1655, 1660 (1942)
language other than a situation such as this,       (equal protection clause)); Griswold v.
in which a person not related to a child by         Connecticut, 381 U.S. 479, 496, 85 S. Ct.
blood or adoption has stood in a parental           1678, 1688 14 L. Ed. 2d 510, 522 (1965)
role vis-a-vis the child. It is that contention     (Goldberg, J., concurring) (privacy
by V.C. that brings this case before the court      guarantees). In general, however, the right
and affords us jurisdiction over V.C.'s             of a legal parent to the care and custody of
complaint. n5                                       his or her child derives from the notion of
                                                    privacy. According to M.J.B., that right
- - - - - Footnotes - - - - - - - - - - - - - - -   entitles her to absolute preference over V.C.
                                                    in connection with custody and visitation of
n5 The legislative grant of power is what           the twins. She argues that V.C., a stranger,
distinguishes this case from West v. The            has [***36] no standing to bring this
Superior Court of Sacramento, 59 Cal. App.          action. We disagree.
4th 302 (Cal. Ct. App. 1997); Van v.
Zahorik, 227 Mich. App. 90, 575 N.W.2d               The right of parents to the care and custody
566 (Mich. Ct. App. 1997), aff'd, 460 Mich.         of their children is not absolute. For
320, 597 N.W.2d 15 (Mich. 1999); and                example, a legal parent's fundamental right
Titchenal v. Dexter, 166 Vt. 373, 693 A.2d          to custody and control of a child may be
682 (Vt. 1997), cited by M.J.B. for the             infringed upon by the state if the parent
proposition that we lack jurisdiction over          endangers the health or safety of the child.
V.C.'s claim. Each of those cases was               Wisconsin v. Yoder, 406 U.S. 205, 233-34,
decided based on an absence of legislative          92 S. Ct. 1526, 1542, 32 L. Ed. 2d 15, 35
authority evidenced by a legislative scheme         (1972); Prince v. Massachusetts, 321 U.S.
that did not include the kind of language           158, 166-67, 64 S. Ct. [**549] 438, 442,
employed here.                                      88 L. Ed. 645, 652-53 (1944). Likewise, if
- - - - - - - - - - - - End Footnotes- - - - - -    there is a showing of unfitness,
                                                    abandonment or gross misconduct, a parent's
B                                                   right to custody of her child may be usurped.
Separate and apart from the statute, M.J.B.         Watkins, supra, 163 N.J. at 246, 2000 N.J.
contends that [***35] there is no legal             LEXIS 361, *26; Guardianship of K.H.O.,
precedent for this action by V.C. She asserts,      161 N.J. 337, 347, 736 A.2d 1246 (1999);
 [*218] correctly, that a legal parent has a        Adoption of Child by D.M.H. & S.H., 135
fundamental right to the care, custody and          N.J. 473, 481, 641 A.2d 235 (1994); New
nurturance of his or her child. Watkins v.          Jersey Div. of Youth Fam. Serv. v. K.M., 136

N.J. 546, 557, 643 A.2d 987 (1994); In re        which a third party has stepped in to assume
Adoption of Children by D., 61 N.J. 89, 95,      the role of the legal parent who has been
293 A.2d 171 (1972); Zack v. Fiebert, 235        unable or unwilling to undertake the
N.J. Super. 424, 428, 563 A.2d 58 (App.          obligations of parenthood.
Div. 1989); D.T., supra, 200 N.J. Super. at
176.                                             Sorentino, supra, 72 N.J. at 132
                                                 (acknowledging that before court would
 [*219] According [***37] to M.J.B.,             remove child from foster home and return to
because there is no allegation by V.C. of        biological parents, hearing was necessary to
unfitness, abandonment or gross                  determine whether child would be
misconduct, there is no reason advanced to       psychologically harmed by the separation
interfere with any of her constitutional         from his foster parents); Matter of Adoption
prerogatives. What she elides from               of Child by P.S., 315 N.J. Super. 91, 94-95,
consideration, however, is the "exceptional      716 A.2d 1171 (App. Div. 1998) (stating
circumstances" category (occasionally            that court must consider whether child
denominated as extraordinary                     bonded and formed psychological
circumstances) that has been recognized as       relationship with foster parents before
an alternative basis for a third party to seek   custody rights of natural parent [*220]
custody and visitation of another person's       could be asserted); Guardianship of J.T.,
child. Watkins, supra, 163 N.J. at 247, 2000     269 N.J. Super. 172, 190, 634 A.2d 1361
N.J. LEXIS 361, *29; D.T., supra, 200 N.J.       (App. Div. 1993) [***39] (finding
Super. at 176. The "exceptional                  transfer of child from foster mother, who
circumstances" category contemplates the         acted as psychological parent, to biological
intervention of the Court in the exercise of     mother was barred because overwhelming
its parens patriae power to protect a child.     evidence existed that psychological harm to
Sorentino v. Family & Children's Soc'y of        child would result); Todd v. Sheridan, 268
Elizabeth, 72 N.J. 127, 132, 367 A.2d 1168       N.J. Super. 387, 398, 633 A.2d 1009 (App.
(1976); Adoption of M., 317 N.J. Super. 531,     Div. 1993) (applying best interest standard
541, 722 A.2d 615 (Ch. Div. 1998); see also      in custody dispute between four year old's
Sider v. Sider, 334 Md. 512, 639 A.2d 1076,      biological father and maternal grandparents,
1085 (Md. 1994)(stating that presumption of      who lived with child and acted as
parental fitness can be overcome upon            psychological parents); Zack v. Fiebert, 235
showing of unfitness or exceptional              N.J. Super. 424, 433, 563 A.2d 58 (App.
circumstances); Cotton v. Wise, 977 S.W.2d       Div. 1989) (establishing that maternal
263, 265 (Mo. 1998)(requiring unfitness,         grandparents, who were not psychological
abandonment, or [***38] extraordinary            parents, needed to prove biological father's
circumstances before terminating parental        unfitness to obtain custody, not simply best
rights); Merritt v. Way, 58 N.Y.2d 850, 446      interests); D.T., supra, 200 N.J. Super. at
N.E.2d 776, 777, 460 N.Y.S.2d 20 (N.Y.           175 (App. Div. 1985) (finding that maternal
1983)(stating that surrender, abandonment,       grandparents, with whom grandchild and
unfitness, persistent neglect, or other          biological mother resided, were not entitled
extraordinary circumstance will result in        to custody of grandchild upon death of
termination of right to custody).                biological mother because grandparents
                                                 failed to demonstrate that they were
Subsumed within that category is the subset      psychological parents); Hoy v. Willis, 165
known as the psychological parent cases in       N.J. Super. 265, 277, 398 A.2d 109 (App.

Div. 1978) (finding [**550] that best                At the heart of the psychological parent
interests of child required that custody of         cases is a recognition that children have a
child be granted [***40] to maternal aunt           strong interest in maintaining the ties that
with whom child was voluntarily placed by           connect them to adults who love and provide
natural mother and with whom child had              for them. That interest, for constitutional as
developed a psychological parent                    well as social purposes, lies in the emotional
relationship); Guardianship of D., C., E. &         bonds that develop between family members
A., 169 N.J. Super. 230, 242, 404 A.2d 663          as a result of shared daily life. Smith v.
(Camden County Ct. 1979) (finding that              Organization of Foster Families for
foster parents, who were child's                    Equality and Reform, 431 U.S. 816, 844, 97
psychological parents, were entitled to             S. Ct. 2094, 2109, 53 L. Ed. 2d 14, 35
custody over natural parents who had lacked         (1977). That point was emphasized in Lehr
contact for over four years).                       v. Robertson, 463 U.S. 248, 261, 103 S. Ct.
                                                    2985, 2993, 77 L. Ed. 2d 614, 626
Cases in other jurisdictions have also              (1983), [***42] where the Supreme Court
recognized the psychological parent                 held that a stepfather's actual relationship
doctrine. Carter v. Brodrick, 644 P.2d 850,         with a child was the determining factor
855 (Alaska 1982)(acknowledging that step-          when considering the degree of protection
parents who stand in loco parentis have             that the parent-child link must be afforded.
ability to petition for visitation); Custody of     The Court stressed that the importance of
C.C.R.S., 892 P.2d 246, 247 (Colo.                  the familial relationship, to the individuals
1995)(holding that best interest test applies       involved and to the society, stems from the
to determine custody between biological and         emotional attachments that derive from the
psychological parents); Simpson v. Simpson,         intimacy of daily association, and from the
586 S.W.2d 33, 35 (Ky. 1979)(recognizing            role it plays in 'promoting a way of life'
that nonparent who stands in loco parentis          through the instruction of children as well as
may petition for custody); E.N.O. v. L.M.M.,        from the fact of blood relationship.
429 Mass. 824, 711 N.E.2d 886, 893-94               [Ibid.]
(Mass. 1999) (holding that trial court had
jurisdiction to award visitation between            To be sure, prior cases in New Jersey have
 [*221] child and de facto parent);                 arisen in the context of a third party taking
 [***41] In Matter of J.W.F., 799 P.2d              over the role of an unwilling, absent or
710, 714 (Utah 1990) ("The fact that a              incapacitated parent. The question presented
person is not a child's natural or legal parent     here is different; V.C. did not step into
does not mean that he or she must stand as a        M.J.B.'s shoes, but labored alongside her in
total stranger to the child where custody is        their family. However, because we view this
concerned. Certain people, because of their         issue as falling broadly within the contours
relationship to a child, are at least entitled to   we have previously described, and because
standing to seek a determination as to              V.C. invokes the "exceptional
whether it would be in the best interests of        circumstances" doctrine based on her claim
the child for them to have custody.");              to be a psychological parent to the twins, she
Custody of H.S.H.-K., 193 Wis. 2d 649, 533           [*222] has standing to maintain this action
N.W.2d 419, 421 (Wis. 1995)(outlining four          separate and apart from the statute.
prong test for establishing de facto parent
relationship).                                      IV
                                                    The next issue we confront is how a

party [***43] may establish that he or she       Additionally, the court noted that a de facto
has, in fact, become a psychological parent      parent performs those functions "for reasons
to the child of a fit and involved legal         primarily other than financial
parent. That is a question which many of our     compensation." E.N.O., 711 N.E.2d at 891
sister states have attempted to answer. Some     n.6.
have enacted statutes to address the subject
by deconstructing psychological parenthood       Similarly, in Carter v. Brodrick, 644 P.2d
to its fundamental elements, including: the      850 (Alaska 1982), the Alaska Supreme
substantial nature of the [**551]                Court defined the nature of the relationship
relationship between the third party and the     that [*223] gives rise to a finding that the
child, see, e.g., Ariz. Rev. Stat. Ann. § 25-    third party acted as a psychological parent.
415(G)(1) (West 2000); whether or not the        The court stated that the psychological
third party and the child actually lived         parent is one who, on a day-to-day basis,
together, see, e.g., Minn. Stat. Ann. §          through interaction, companionship,
257.022(2b) (West 1999); Tex. Fam. Code          interplay, and mutuality, fulfills the child's
Ann. § 102.003(a)(9)(West 1999); and             psychological need for an adult. This adult
whether the unrelated third party had            becomes an essential focus [***45] of the
previously provided financial support for the    child's life, for he is not only the source of
child, see, e.g. 1999 Nev. Stat.                 the fulfillment of the child's physical needs,
125A.330(3)(I).                                  but also the source of his emotional and
                                                 psychological needs.
Several state courts have attempted to refine
the concept further. For example, the            [Id. at 853 n.2.]
Supreme Judicial Court of Massachusetts
has recently addressed the issue of granting     The most thoughtful and inclusive definition
a person it denominated as a child's de facto    of de facto parenthood is the test enunciated
parent the right to visitation. E.N.O. v.        in Custody of H.S.H.-K., 193 Wis. 2d 649,
L.M.M., 429 Mass. 824, 711 N.E.2d 886            533 N.W.2d 419, 421 (Wis. 1995), and
(Mass. 1999). In E.N.O., the court defined a     adopted by the Appellate Division majority
de facto parent as one [***44] who has no        here. It addresses the main fears and
biological relation to the child, but has        concerns both legislatures and courts have
participated in the child's life as a member     advanced when addressing the notion of
of the child's family. The de facto parent       psychological parenthood. Under that test,
resides with the child and, with the consent
and encouragement of the legal parent,           to demonstrate the existence of the
performs a share of care taking functions at     petitioner's parent-like relationship with the
least as great as the legal parent. The de       child, the petitioner must prove four
facto parent shapes the child's daily routine,   elements: (1) that the biological or adoptive
addresses his developmental needs,               parent consented to, and fostered, the
disciplines the child, provides for his          petitioner's formation and establishment of a
education and medical care, and serves as a      parent-like relationship with the child; (2)
moral guide.                                     that the petitioner and the child lived
                                                 together in the same household; (3) that the
[E.N.O., 711 N.E.2d at 891 (citation and         petitioner assumed the obligations of
footnote omitted)].                              parenthood by taking significant
                                                 responsibility for the child's care, education

and development, including contributing          makes the biological or adoptive parent a
towards the child's support, without             participant in the creation of the
expectation of financial [***46]                 psychological parent's relationship with the
compensation [a petitioner's contribution to     child. Without such a requirement, a paid
a child's support need not be monetary]; and     nanny or babysitter could theoretically
(4) that the petitioner has been in a parental   qualify for parental status. To avoid that
role for a length of time sufficient to have     result, in order for a third party to be deemed
established with the child a bonded,             a psychological parent, the legal parent must
dependent relationship parental in nature.       have fostered the formation of the parental
                                                 relationship between the third party and the
[Custody of H.S.H.-K., supra, 533 N.W.2d at      child. By fostered is meant that the legal
421 (footnote omitted).]                         parent ceded over to the third party a
                                                 measure of parental authority and autonomy
Recapping, the legal parent must consent to      and granted to that third party rights and
and foster the relationship between the third    duties vis-a-vis the child that the third
party and the child; the third party must have   party's status would not otherwise warrant.
lived with the child; the third party must       Ordinarily, a relationship based on payment
perform parental functions for the child to a    by the legal parent to the third party will not
significant degree; and most important, a        qualify.
parent-child bond must be forged. We are
satisfied that that test provides a good         The requirement of cooperation by the legal
framework [**552] for determining                parent is critical because it places control
psychological parenthood in cases where the      within his or her hands. That parent has the
third party has lived for a substantial period   absolute ability to maintain a zone of
with the legal parent and her child. n6          autonomous privacy for herself and her
                                                 child. However, if she wishes to maintain
- - Footnotes - - - - - - - - - - - - - - -      that zone of privacy she cannot invite a third
                                                 party to function as a parent to her child and
n6 Obviously, the notion of consent will         cannot cede over to that third [***48]
have different implications in different         party parental authority the exercise of
factual settings. For example, where a legal     which may create a profound bond with the
parent voluntarily absents herself physically    child.
or emotionally from her child or is incapable
of performing her parental duties, those         Two further points concerning the consent
circumstances may constitute consent to the      requirement need to be clarified. First, a
parental role of a third party who steps into    psychological parent-child relationship that
her shoes relative to the child. As in all       is voluntarily created by the legally
psychological parent cases, the outcome in       recognized parent may not be unilaterally
such a case will depend on the full factual      terminated after the relationship between the
complex and the existence of the other           adults ends. Although the intent of the
factors contained in the test.                   legally recognized parent is critical to the
                                                 psychological parent analysis, the focus is
                                                 on that party's intent during the formation
- - - End Footnotes- -- - - - - - - [***47]      and pendency of the parent-child
                                                 relationship. The reason is that the ending of
[*224] Prong one is critical because it          the relationship between the legal parent and

the third party does not end the bond that the   circumstances parallel the situation
legal parent fostered and that actually          in [***50] which a woman, already
 [*225] developed between the child and the      pregnant or a mother, becomes involved
psychological parent. Thus, the right of the     with or marries a man who is not the
legal parent                                     biological or adoptive father of the child, but
                                                 thereafter fully functions in every respect as
[does] not extend to erasing a relationship      a father. There is nothing about that scenario
between her partner and her child which she      that would justify precluding the possibility
voluntarily created and actively fostered        of denominating that person as a
simply because after the party's separation      psychological parent. It goes without saying
she regretted having done so.                    that adoption proceedings in these
                                                 circumstances would eliminate the need for
[J.A.L. v. E.P.H., 453 Pa. Super. 78, 682        a psychological parent inquiry altogether
A.2d 1314, 1322 (Pa. Super. Ct.                  and would be preferable to court
1996)(footnote omitted).]                        intervention. However, the failure of the
                                                 parties to [*226] pursue that option is not
In practice, that may mean protecting            preclusive of a finding of psychological
those [***49] relationships despite the          parenthood where all the other indicia of
later, contrary wishes of the legal parent in    that status are present.
order to advance the interests of the child.
As long as the legal parent consents to the      Concerning the remaining prongs of the
continuation of the relationship between         H.S.H.-K. test, we accept Wisconsin's
another adult who is a psychological parent      formulation with these additional comments.
and the child after the termination of the       The third prong, a finding that a third party
adult parties' relationship, the courts need     assumed the obligations of parenthood, is
not be involved. Only when that consent is       not contingent on financial contributions
withdrawn are courts called on to protect the    made by the third party. Financial
child's relationship with the psychological      contribution may be considered but should
parent.                                          not be given inordinate weight when
                                                 determining whether a third party has
The second issue that needs to be clarified is   assumed the obligations of parenthood.
that participation in the decision to have a     Obviously, as we have indicated, the
child is not a prerequisite to a finding that    assumption of [***51] a parental role is
one has become a psychological parent to         much more complex than mere financial
the child. We make that point because the        support. It is determined by the nature,
trial court appeared to view the fact that       quality, and extent of the functions
M.J.B. alone made the decision to have the       undertaken by the third party and the
twins as pivotal to the question of the          response of the child to that nurturance.
existence of a psychological [**553]
parent relationship between V.C. and the         Indeed, we can conceive of a case in which
children. Although joint participation in the    the third party is the stay-at-home mother or
family's decision to have a child is probative   father who undertakes all of the daily
evidence of the legally recognized parent's      domestic and child care activities in a
intentions, not having participated in the       household with preschool children while the
decision does not preclude a finding of the      legal parent is the breadwinner engaged in
third party's psychological parenthood. Such     her occupation or profession. Although it is

always possible to put a price on the            circumstances involving the volitional
contributions of the stay-at-home parent, see    choice of a legal parent to cede a measure of
Martha M. Ertman, Commercializing                parental [**554] authority to a third
Marriage: A Proposal for Valuing Women's         party; to allow that party [***53] to
Work Through Premarital Security                 function as a parent in the day-to-day life of
Agreements, 77 Tex. L. Rev. 17, 43               the child; and to foster the forging of a
(1998)(outlining different economic models       parental bond between the third party and
for placing value on homemaker's                 the child. In such circumstances, the legal
contribution), our point is that such an         parent has created a family with the third
analysis is not necessary because it is the      party and the child, and has invited the third
nature of what is done that will determine       party into the otherwise inviolable realm of
whether a parent-child bond has developed,       family privacy. By virtue of her own
not how much it is worth in dollars.             actions, the legal parent's expectation of
                                                 autonomous privacy in her relationship with
It bears repeating that the fourth prong is      her child is necessarily reduced from that
most important because it requires the           which would have been the case had she
existence of a parent-child bond. A              never invited the third party into their lives.
necessary corollary is that the [***52]          Most important, where that invitation and its
third party must have functioned as a parent     consequences have altered her child's life by
for a long enough time that such a bond has      essentially giving him or her another parent,
developed. What is crucial here is not the       the legal parent's options are constrained. It
amount of time but the nature of the             is the child's best interest that is preeminent
relationship. How much time is necessary         as it would be if two legal parents were in a
will turn on the facts of each case including    conflict over custody and visitation. Zack,
an assessment of exactly what functions the      supra, 235 N.J. Super. at 432.
putative parent performed, as well as at what
period [*227] and stage of the child's life      VI
and development such actions were taken.          Once a third party has been determined to
Most importantly, a determination will have      be a psychological parent to a child, under
to be made about the actuality and strength      the previously described standards, he or she
of the parent-child bond. Generally, that will   stands in parity with the legal parent. Ibid.
require expert testimony.                        Custody [*228] and visitation issues
                                                 between them are to be determined on a best
The standards to which we have referred          interests [***54] standard giving weight
will govern all cases in which a third party     to the factors set forth in N.J.S.A. 9:2-4:
asserts psychological parent status as a basis
for a custody or visitation action regarding     the parents' ability to agree, communicate
the child of a legal parent, with whom the       and cooperate in matters relating to the
third party has lived in a familial setting.     child; the parents' willingness to accept
                                                 custody and any history of unwillingness to
V                                                allow parenting time not based on
This opinion should not be viewed as an          substantiated abuse; the interaction and
incursion on the general right of a fit legal    relationship of the child with its parents and
parent to raise his or her child without         siblings; the history of domestic violence, if
outside interference. What we have               any; the safety of the child and the safety of
addressed here is a specific set of              either parent from physical abuse by the

other parent; the preference of the child        presumptive rule, subject to the
when of sufficient age and capacity to           considerations set forth in N.J.S.A. 9:2-4,
reason so as to form an intelligent decision;     [***56] as would be the case if two
the needs of the child; the stability of the     natural parents were in conflict. As we said
home environment offered; the quality and        in Beck v. Beck, 86 N.J. 480, 495, 432 A.2d
continuity of the child's education; the         63 (1981), visitation rights are almost
fitness of the parents; the geographical         "invariably" granted to the non-custodial
proximity of the parents' homes; the extent      parent. Indeed, [*229] "the denial of
and quality of time spent with the child prior   visitation rights is such an extraordinary
to or subsequent to the separation; the          proscription that it should be invoked only
parents' employment responsibilities; and        in those exceptional cases where it clearly
the age and number of the children.              and convincingly appears [**555] that
                                                 the granting of visitation will cause physical
That is not to suggest that a person's status    or emotional harm to the children or where it
as a legal parent does not play a part in        is demonstrated that the parent is unfit."
custody or visitation proceedings in those       Barron v. Barron, 184 N.J. Super. 297, 303,
circumstances. Indeed, as the                    445 A.2d 1182 (Ch. Div. 1982); see also,
Appellate [***55] Division stated in Todd        Wilke v. Culp, 196 N.J. Super. 487, 503, 483
v. Sheridan, 268 N.J. Super. 387, 399, 633       A.2d 420 (App. Div. 1984) (requiring clear
A.2d 1009 (App. Div. 1993):                      and convincing evidence of exceptional
                                                 circumstance to warrant denial of visitation).
No fair reading of [Zack] prohibits a judge      Once the parent-child bond is forged, the
from considering any aspect of either party's    rights and duties of the parties should be
character or status in assessing the best        crafted to reflect that reality.
interests of the child. N.J.S.A. 9:2-4.
Obviously, as the trial judge recognized, he     VII
was not free to give an absolute preference      Ordinarily, when we announce a new
to [the natural parent] because that would       standard, we remand the case to the trial
have undermined the salutary aims Zack was       court for reconsideration. That is not
meant to accomplish. However, he was free        necessary here. This full record informs us
to consider [the natural parent's] status as     that M.J.B. fostered and cultivated, in every
[the child's] biological father as one weight    way, the development [***57] of a
in the best interests balance.                   parent-child bond between V.C. and the
                                                 twins; that they all lived together in the same
We agree. The legal parent's status is a         household as a family; that despite M.J.B.'s
significant weight in the best interests         after-the-fact characterizations of V.C. as a
balance because eventually, in the search for    "stranger" and a "nanny," V.C. assumed
self-knowledge, the child's interest in his or   many of the day-to-day obligations of
her roots will emerge. Thus, under ordinary      parenthood toward the twins, including
circumstances when the evidence                  financial support; and that a bonded
concerning the child's best interests (as        relationship developed between V.C. and the
between a legal parent and psychological         twins that is parental in nature. In short, we
parent) is in equipoise, custody will be         agree with the Appellate Division that V.C.
awarded to the legal parent.                     is a psychological parent to the twins.

Visitation, however, will be the                 That said, the issue is whether V.C. should

be granted joint legal custody and visitation.   continuing to see the children on a regular
As we have stated, the best interests            basis. Indeed, it is clear that continued
standard applies and the factors set forth in    regular visitation is in the twins' best
N.J.S.A. 9:2-4 come into play. Under that        interests because V.C. is their psychological
statute V.C. and M.J.B. are essentially equal.   parent. We thus affirm the judgment of the
Each appears to be a fully capable, loving       Appellate Division.
parent committed to the safety and welfare
of the twins. Although there is animosity        VIII
between V.C. and M.J.B., that is not a            Third parties who live in familial
determinant of whether V.C. can continue in      circumstances with a child and his or her
the children's lives.                            legal parent may achieve, with the consent
                                                 of the legal parent, a psychological parent
We note that V.C. is not seeking joint           status vis-a-vis a child. Fundamental to a
physical custody, but joint legal custody for    finding of the existence of that status is that
decision making. However, due to the             a parent-child bond has been created. That
 [*230] pendency of this case, V.C. has not      bond cannot be unilaterally terminated by
been involved [***58] in the decision-           the legal parent. When there is a conflict
making for the twins for nearly four years.      over custody and visitation between the
To interject her into the decisional realm at    legal parent and a psychological [***59]
this point would be unnecessarily disruptive     parent, the legal paradigm is that of two
for all involved. We will not, therefore,        legal parents and the standard to be applied
order joint legal custody in this case.          is the best interests of the child.

Visitation, however, is another matter. V.C.     Establishing psychological parenthood is not
and the twins have been visiting during          an easy task and the standards we have
nearly all of the four years since V.C. parted   adopted should be scrupulously applied in
company from M.J.B. Continued visitation         order to protect the legal parent-child
in those circumstances is presumed. Nothing      relationship.
suggests that V.C. should be precluded from

Video on Miller-Jenkins custody dispute

Litigation History
      July 2004 Lisa Miller files an action in circuit court in Virginia seeking to have herself
       declared the child's sole legal parent. Miller succeeds in the trial court.
      November 2004 Lambda Legal files appeal on behalf of Janet Jenkins seeking to ensure
       respect for a Vermont court order granting her regular visitation with her daughter.
      November 2006 Virginia Court of Appeals upholds Vermont court order.
      April 2007 Virginia Court of Appeals orders lower court to register the order.
      April 2008 Lambda Legal argues in Virginia Supreme Court that court orders regarding
       custody and visitation issued in one state must be enforced in other states as well.
      June 2008 Virginia Supreme Court upholds Vermont court order.
      November 2009 Vermont court orders that custody of Isabella be transferred to Janet on
       January 1, 2010.
      January 2010 Janet Jenkins appeals to the public for help in locating her
       missing daughter, Isabella Miller-Jenkins, after court-ordered custody transfer does not

Lesbian Mom Seeks Compliance With Custody Order
Lambda news release 1/4/2010

Janet Jenkins, a mother represented by Lambda Legal, Gay & Lesbian Advocates & Defenders
(GLAD), the ACLU of Virginia and cooperating attorneys in a custody dispute, issued a
statement on January 4, 2010, beseeching the public's help in locating her missing daughter,
Isabella Miller-Jenkins, who has been in the care of her former partner (and Isabella's other
mother), Lisa Miller.

In November 2009, a Vermont court ordered that Miller, who had relocated to Virginia, transfer
custody of Isabella to Jenkins on January 1. The order was based on Miller's failing to honor
visitation orders, as well as the court's belief that Jenkins would do a better job facilitating
Isabella's relationships with both parents. The transfer did not occur. Miller and Isabella's
whereabouts are currently unknown.

"Isabella is my daughter," reads Jenkins' statement. "I was there with Lisa when she gave birth to
Isabella. We gave her both our last names, since we were both her parents. After Isabella was
born, Lisa and I cared for her together. We both fed her, played with her, changed her diapers,
and loved her.

"My goal has never been to separate Isabella from Lisa. I just want Isabella to know and love
both of her parents. I just want to be with her, like any parent. Please help me find my child."

Isabella was born in 2002, after Jenkins and Miller, then a couple, decided to have a child
together. Miller was artificially inseminated to conceive the child.

In 2003, Miller filed papers in Vermont asking the court to dissolve her and Jenkins' civil union
and decide the custody of their child. The court granted temporary custody to Miller and
visitation to Jenkins. The court later determined that Jenkins is Isabella's legal parent.

When Miller took her case to Virginia's Supreme Court, she invoked Virginia's antigay marriage
law to have herself declared the child's sole legal parent. Lambda Legal represented Jenkins,
defended her relationship with her daughter and won a decision upholding the Vermont court's
decision. Lambda Legal has represented Janet for over five years, including multiple appeals,
and every level of Virginia's court system has ordered that Virginia respect the orders of the
Vermont courts.

"Our main concern remains for the safety and well-being of Isabella. Our client, Janet Jenkins,
has done everything she can as a loving parent to work within the system to protect her
child. Lisa Miller has repeatedly defied court orders and her behavior has been outrageous and
harmful. Today our thoughts are with Janet who does not know where her daughter has been
taken. This terrible situation cannot continue. Miller and Isabella must be found and the transfer
of custody must take place as the court has ordered," said Greg Nevins, Senior Supervising Staff
Attorney in Lambda Legal's Southern Regional Office based in Atlanta.

The case is Miller-Jenkins v. Miller-Jenkins.


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