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Courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the children. There are no published cases dealing with transgender parents. New Jersey courts will allow a former same-sex partner (with no legal or biological relationship to the children) to petition for visitation.
Custody and Visitation for Gay, Lesbian and Bisexual Parents
Courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the children.
New Jersey laws states: "The Legislature finds and declares that it is in the public policy of this state to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of childrearing in order to effect this policy. In any proceeding involving the custody of a minor child, the rights of both parents shall be equal and the court shall enter an order, which may include: (a) Joint custody of a minor child to both parents, which is comprised of legal custody or physical custody, which shall include: (1) provisions for residential arrangements so that a child shall reside either solely with one parent or alternatively with each parent in accordance with the needs of the parents and the child; and (2) provisions for consultation between the parents in making major decisions regarding the child’s health, education and general welfare; (b) Sole custody to one parent with appropriate parenting time for the non-custodial parent; or (c) Any other custody arrangement as the court may determine to be in the best interests of the child.
"In making an award of custody, the court shall consider but not be limited to the following factors: the parents’ ability to agree, communicate and cooperate in matters relating to the child; the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child, when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child’s education; the fitness of the parents; the geographical proximity of the parents’ homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents’ employment responsibilities; and the age and number of the children. A parent shall not be deemed unfit unless the parents’ conduct has a substantial adverse effect on the child. The court, for good cause and upon its own motion, may appoint a guardian ad litem or an attorney or both to represent the minor child’s interests. The court shall have the authority to award a counsel fee to the guardian ad litem and the attorney and to assess that cost between the parties to the litigation.
In one 1979 case, M.P. v. S.P., the mother received custody of the daughters. Seven years later the father petitioned for custody, arguing that the mother was unfit. The trial court awarded custody to the father. The mother appealed on the grounds that the court used her lesbianism as the sole basis for removing custody. The appeals court found that there was no evidence for the lower court to make this decision, and said, "Nothing suggests that her homosexual preference in itself presents any threat of harm to her daughters."
In a 1974 case, In re J.S. & C., the mother sought to further restrict the father’s visitation because he was gay and active in the gay rights movement. Although ultimately restricting the father’s visitation rights, the appeals court stated that the "parental rights of a homosexual, like those of a heterosexual, are constitutionally protected. … That right may not be restricted without a showing that the parent’s activities may tend to impair the emotional or physical health of the child." Additionally, the court concludes that the fact that one of the parents is gay does not per se provide a sufficient basis for a deprivation of visitation rights. The appeals court restricted the father’s visitation based on the testimony given, the evidence received and the interviews with the children, and that a reasonable limitation would not in any way hinder the continuance and furtherance of the sound parent-child relationships which existed between the father and the children.
Custody and Visitation for Transgender Parents
There are no published cases dealing with transgender parents. State law, however, does not seem to permit the consideration of factors that do not affect the best interests of the child to be used in custody and visitation determinations.
Custody and Visitation for Same-Sex Co-Parents
New Jersey courts will allow a former same-sex partner (with no legal or biological relationship to the children) to petition for visitation.
In a 2003 case, A.B. had sued S.E.W, her former domestic partner, for visitation of a child that S.E.W. had conceived during the relationship. The court found that A.B. had stood in loco parentis to K.W. but that A.B. had not proved by a preponderance of evidence that visitation would be in the child’s best interest. The Supreme Court of New Jersey declined to overrule the appellate court decision, upholding the trial court decision, because the time for A.B. to appeal the order had expired and no extraordinary circumstances existed warranting a reopening of the trial court’s visitation order.
In one 2001 case, A.F. v. D.L.P., A.F. petitioned for visitation with her ex-partner’s adopted child. The trial court denied the petition, stating that A.F. had not met the criteria to be considered a de facto parent. The appellate court agreed with this finding.
In a 2000 case, V.C. v. M.J.B., V.C. petitioned the court for shared custody and visitation with her former same-sex partner’s twins. M.J.B. gave birth to the twins; however, V.C. was very involved in the process and the twins’ lives. V.C. never adopted the twins. After the relationship ended, M.J.B. allowed V.C. to visit with the twins every other weekend and V.C. gave money to M.J.B. for household expenses. At some point, M.J.B. refused to continue to allow visitation and to accept V.C.’s money. V.C.’s petition for joint legal custody and visitation was denied. The trial court stated that she had failed to establish that her bond with the children had risen to the level of psychological or de facto parent. The appeals court affirmed the denial of custody but reversed the denial of visitation and found that V.C. has established a parent-like relationship with the children. M.J.B. appealed. The issue before the state Supreme Court was whether V.C. qualified as a psychological or de facto parent. The factors that the court adopted to answer this question were: the legal parent must consent to and foster the relationship between the third party and the child; the third party must have lived with the child; the third party must perform parental functions for the child to a significant degree; and, most importantly, a parent-child bond must be forged. Once a third party had been determined to be a de facto parent, he or she stood in parity with the legal parent. The state Supreme Court found that V.C. was a de facto parent and, although she petitioned for joint legal custody, the high court found that because she has not been involved with making decisions for the twins for four years, it would be disruptive to inject her back into the decision-making process. The court, however, affirmed the appellate court’s decision granting V.C. visitation.
Citations: N.J. STAT. ANN. § 9:2-4; M.P. v. S.P., 404 A.2d 1256 (N.J. Super. Ct. App. Div. 1979); In re J.S. & C., 324 A.2d 90 (N.J. Super. Ct. Ch. Div. 1974), aff’d 142 N.J. Super. 499 (App. Div. 1976); A.B. v. S.E.W. 818 A.2d 1270 (N.J. 2003); A.F. v. D.L.P., 771 A.2d 692 (N.J. Super. Ct. App. Div. 2001), certification denied 784 A.2d 721 (N.J. 2001); V.C. v. M.J.B., 748 A.2d 539 (N.J. 2000).
The legal information provided on this page is provided as a courtesy to the public. It is not designed to serve as legal advice. HRC does not warrant that this information is current or comprehensive.
Updated: Tue, December 13, 2005 - 12:00:05
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