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Modern interpretation of what makes a family is constantly changing. In a first-of-its-kind decision titled D.G. and S.H. v. K.S., one New Jersey judge has determined that three separate individuals are equally entitled to custody of a child.

In 2006, longtime friends K.S. and D.G. started discussing having a child. S.H., D.G.'s husband, would play a substantial role as co-parent, and would give the child his last name, but genetic material for the child would come from D.G., with K.S. giving birth. The girl, O.S.H., was born in 2009.

The four lived together for a time, with S.H. watching the child during his summer vacations from his teaching job. When the married couple moved to Manhattan, K.S. remained in New Jersey, and the men still saw their daughter on weekend visits.

Subsequently, K.S. met a man who lived in California to whom she became engaged to be married, and went to the couple to talk to them about her relocating with O.S.H. to California to live with her future husband. The three could not reach an arrangement, and D.G. and S.H. filed a complaint with the court for physical and residential custody, a determination that S.H. was a psychological and legal parent to O.S.H., and parenting time. K.S. in return sought an order permitting her to move to California, an award of residential custody, child support, and medical coverage.

After a 19-day hearing, the court largely sided with the married couple. The court determined that S.H. was indeed a psychological parent to O.S.H, due to the amount of time and emotional support he had invested in raising the child, the fact that the biological parents had determined that S.H. would play a parental role even before the child was born, and the bond S.H. had established with the child.

However, the judge felt that her hands were tied in regards to establishing a legal parental relationship. The State of New Jersey recognizes three grounds for legal parentage: Adoption, genetic contribution, and gestational primacy (i.e., giving birth to the child). The judge ruled that any additional grounds for finding a legal parental relationship would need to be established by the legislature before she could find a legal non-biological, non-adoptive parental relationship.

However, the judge determined that, since S.H. was a psychological parent, custody should be shared equally between him, D.G., and K.S., and that residential custody should be split evenly between the married couple and K.S. The court acknowledged that such a custody-sharing arrangement was uncommon, but that it was justified in this case by the close bond that the child shared with all three parents.

Based on both the circumstances of the move and the relationship between the three parents, the judge denied K.S.' application to relocate with O.S.H. to California. The judge ruled that, since K.S. did not have a detailed plan as to what would happen when she moved, since she lacked familial support there to assist with child care, and since the child would be deprived of parental time with her two parents in New Jersey, the relocation would not be in O.S.H.'s best interests.

If you are in need of seasoned legal assistance with your New Jersey divorce or custody matter, contact the Morristown family law attorneys at Smith & Doran for a consultation on your claims, at 973-292-0016.

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