In 2015, the United States Supreme Court legalized same-sex marriage and required individual states to recognize lawful same-sex marriages performed in other states. Despite this significant change in the law, same-sex couples seeking divorce in situations where a child was born during the marriage find there is a discrepancy in the way New Jersey law treats custody and parenting time disputes between same-sex married couples and heterosexual married couples. Specifically, New Jersey law presumes paternity when a child is born to a heterosexual married couple, a presumption that does not equally apply to same-sex married couples.

A man is presumed to be the biological father of a child if he and the child’s biological mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment or divorce. This presumption of paternity expands to men who have attempted to marry the child’s biological mother either before or after the child’s birth under circumstances where the marriage is subsequently held to be invalid. However, New Jersey law has yet to expand upon and apply this presumption to divorcing same-sex couples encountering custody and parenting time issues.

Thus, in situations where a child is born in vitro to a same-sex married couple, the spouse of the biological mother must demonstrate that she is the child’s psychological parent before a court will determine custody and parenting time. Simply put, a psychological parent is someone who lives in a family-like circumstance with a child. To be declared a “psychological parent,” a parent must establish:

(1) that the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child;

(2) that the “parent” and the child lived together in the same household;

(3) that the “parent” assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without the expectation of financial compensation; and

(4) that the “parent” has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

Once a court deems an individual a psychological parent, that individual stands on equal footing with the legal parent, and custody and parenting time disputes must be decided utilizing the “best interest of the child” standard. Notably, same-sex married couples can avoid the psychological parent inquiry altogether by formally adopting the child of the marriage.