Chat with us, powered by LiveChat

Can I file a motion with DCP&P if I’m not the biological parent of the child?

Third Party Petitions – Psychological Parent

DCP&P Defense Lawyers with offices in Hackensack, New Jersey

Motion Family Court DYFS Attorneys NJ

New Jersey DCP&P Defense Lawyers

If you are a step-parent, relative, or friend, and you have a deep concern for a child and wish to assist them but the Division of Child Protection and Permanency (DCP&P) as well as the Courts are ignoring your request, there is a way your voice can be heard.  The DCP&P defense lawyers at our law firm are ready and able to assist you.  We can protect your rights, your family, and your future.  Please contact our experienced DCP&P defense lawyers today for immediate assistance at (908)-356-6900. The initial consultation is always provided free of charge.

Can I file a motion with DCP&P if I am not the biological parent? The answer is “Yes”.

If you are not a natural parent but wish to seek custody so you can assist the child because you believe you can serve their best interests, such a application is possible by establishing you are the “psychological parent.”  

Generally, the standard to determine custody between natural parents is which custodial arrangement will serve the best interest of the child.  Fantony v. Fantony, 21 N.J. 525, 536 (1956).  However, not every case is the same and as such, our Supreme Court announced in Watkins v. Nelson that “it is the relationship of the child to the person seeking custody that determines the standard to be used in deciding [a] custody dispute.”  Watkins v. Nelson, 163 N.J. 235, 253 (2000).   Accordingly, “[t]he standard that controls a custody dispute between a third party and a parent involves a two-step analysis.  The first step requires application of the parental termination standard or a finding of ‘exceptional circumstances.” Id. “If either the statutory parental termination standard or the ‘exceptional circumstances’ prong is satisfied; the second step requires the court to decide whether awarding custody to the third party would promote the best interests of the child.” Id. at 254.

Termination of parental rights standard is set forth in Title 30 and consists of a four-part test.  N.J.S.A. 30:4C-15.1.   The first prong is that the child’s safety, health or development has been or will continue to be endangered by the parental relationship.  Id. The second prong is that the parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Id.  The third prong is two-part and is that the Division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child’s placement outside the home and that the Court has considered alternatives to termination of parental rights. Id.  The fourth and final prong is a catchall category and is that termination of parental rights will not do more harm than good. Id.

With regard to exceptional circumstances in relation to third parties, in the seminal case of V.C. v. M.J.B, 163 N.J. 200 (2000), the Court was called on to determine what legal standard applies to a third party’s claim to joint custody and visitation of her former domestic partner’s biological children, with whom she lived in a familial setting and in respect of whom she claims to have functioned as a psychological parent.  Id at 205.  The Court in V.C. noted that “a legal parent has a fundamental right to the care, custody and nurturance of his or her child.”  Id. at 218.  This right derives from the notion of privacy.  Id. However, the right of privacy is not absolute.  Id.  In addition to cases of unfitness, abandonment or gross misconduct, an alternative basis for a third party to seek custody of another person’s child is that of exceptional circumstances.  Id. at 219; see also Watkins, supra, 163 N.J. at 247–48; In re D.T., 200 N.J.Super. 171, 176 (App.Div.1985).  “Subsumed within that category is the subset known as the psychological parent cases in which a third party has stepped in to assume the role of the legal parent who has been unable or unwilling to undertake the obligations of parenthood.”  V.C., supra, 163 N.J. at 219.  According to the V.C. Court, “[a]t the heart of the psychological parent cases is a recognition that children have a strong interest in maintaining the ties that connect them to adults who love and provide for them.” Id. at 221.

Relying upon that recognition, the Court in V.C. adopted a test to evaluate whether a third party has become a “psychological parent” to a child of a fit and involved legal parent.  The test was based on In re Custody of H.S.H.K., 193 Wis.2d 649, cert. denied, 516 U.S. 975 (1995), a Wisconsin based case, which held the petitioner must demonstrate the existence of four elements: (1) the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child; (2) the petitioner and the child lived together in the same household; (3) the petitioner assumed the obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing to the child’s support, without expectation of financial compensation, and (4) the petitioner had been in a parental role for a length of time sufficient to establish  with the child a bonded, dependent relationship parental in nature. V.C., supra, 163 N.J. at 223.

Once a third party has been deemed to be a psychological parent to a child under the four-prong V.C. test, he or she stands in parity with the legal parent. Id. at 227, (citing Zack v. Fiebert, 235 N.J.Super. 424, 432 (App.Div.1989).  From there, custody and visitation issues are then determined on a best interests standard as if two legal parents were in conflict.  P.B. v. T.H., 370 N.J. Super. 586, 597(App. Div. 2004). 

Contact Our Bergen County DCP&P Lawyers Now for a Free Consultation

If you or a loved one needs assistance with a child abuse or neglect allegation or investigation in New Jersey, contact our offices now for a free initial consultation at (908)-356-6900.

From our blog be in the know

Child Abuse and Employment Disqualification in NJ

How a Child Abuse Conviction Can Affect Your Employment in New Jersey If you are charged with and convicted of child abuse or related...

read more
Can My Mother or Father Take My Kids in NJ?

In some situations, a third party can step in to take care of your children if you are unable or unwilling to do so....

read more
The Role of Your Child’s Teacher in a DCPP Investigation

New Jersey’s Division of Child Protection and Permanency (DCPP) investigates reports regarding child neglect and child abuse throughout the state. As such, DCPP will...

read more
Does Child Abuse go on Your Criminal Record in New Jersey?

Anyone can be charged with a crime for abuse and neglect in New Jersey, while simultaneously facing a family matter involved with a claim...

read more

What our clients say about us

Mr. Tormey has a perfect 10.0 client rating on AVVO.com, an attorney rating service. He has also received the client's choice award for four straight years (2013, 2014, 2015, 2016). Here are some things our clients have to say about the Tormey Law Firm LLC

  • Case dismissed with Data Driven Facts

  • Excellent Attorney

  • Excellent attorney

  • Respectful. Attentive. Professional.

  • If you are reading this- You have reached the right place! Undoubtedly, the BEST Law Firm in New Jersey!

  • Responsive and knowledgeable.

  • Travis Tormey Review

  • An Excellent lawyer!

  • Travis is a Lifesaver

  • Good Service

  • Excellent Attorney! You will not be dissapointed….

  • Excellent

Get in touch we are here. we want to help.

Copyright © 2019. All Rights Reserved.