parent.” Thus, where at least one legal custodial parent has consented to the creation of the psychological parent relationship, the third party has standing to pursue the claim. “Consent” in this context need not be explicit; instead, the focus must be on the intent and actions of the legal parent during the formation of the disputed relationship. Notwithstanding this fact, the Court recognized that establishing psychological parenthood is “not an easy task.” One parent’s lack of consent may be used by the trial court, “in an appropriate context,” as one factor in the Court’s analysis. That being said, the Court noted in dicta its “expectation” that, the longer and more established the parental role of a third party has become, the more the lack of consent by one parent would diminish in significance. As to the trial court’s determination that the matter should not proceed to a plenary hearing, the Court found that D.M. averred sufficient facts that, if credited at a plenary hearing, would establish her standing to pursue her Complaint. Importantly, F.D. and K.A.F. disputed certain factual claims made by D.M. concerning the nature of her relationship with Arthur and F.D.’s alleged consent of the relationship, thus giving rise to the necessity of a plenary hearing. Finally, the Court reversed the award of counsel fees in favor of K.A.F. and F.D. and remanded the matter to a different trial judge. Observation: The basis behind allowing third parties certain rights under the theory of “psychological parentage” is to protect the children from psychological harm when they are separated from third parties who nurtured and lived with them and who have formed a parent-child bond with them. In cases where both parents are fit and engaged in the upbringing of their child, it may seem intuitive that parental autonomy should take
father relief because it found no substantial change in circumstance, and because it relied on the presumption of custody to the non-abusive parent as set forth in the Prevention of Domestic Violence Act. The Appellate Division vacated and remanded the trial court’s determination. Lepis v. Lepis, 83 N.J. 139 (1980) provides “the proper procedure for courts to follow on modification motions.” First, the movant must make a showing of changed circumstances to be entitled to discovery and an evidentiary hearing. Once that prima facie showing is made, however, the trial is decided using “the same standard that apples at the time of an original judgment of divorce”–or, in cases involving custody, by a best interests analysis. In this particular case, holding a custody trial was appropriate, as the psychologist’s report established a prima facie showing of changed circumstances justifying a hearing. However, by relying on the “changed circumstances” standard in its ultimate decision regarding custody, the trial court erred. Similarly, the trial court cited the incorrect legal standard when it determined that the mother was entitled to a presumption of custody pursuant to the Prevention of Domestic Violence Act. The Act applies this presumption only in proceedings in which complaints for restraining orders have been filed. In contrast, in custody trials, the history of domestic violence between the parties is one consideration in determining the best interests of the child. The presumption of custody to the non-abusive parent fulfills its function by “influencing the determination of custody in the initial FRO proceeding.” Thereafter, as previously stated, any change in custody requires a showing of changed circumstances and then proof at a hearing that a child’s best interests are served by a
arguing that the plaintiff wanted to switch the child to a new school because the director of the first program allowed the defendant to sign the child out with the plaintiff’s prior knowledge or consent. The parties’ inability to compromise eventually led to a legal dispute over the comparative rights of each parent in choosing a pre-school for their child. The defendant argued that joint legal custody grants both parties equal rights on education issues, that pre-school attendance is an education issue, and that the plaintiff violated the defendant’s rights by changing the child’s pre-school without his explicit consent. Further, the defendant relied heavily on Beck v. Beck, 86 N.J. 480 (1981) in order to bolster his argument that parents sharing joint legal custody under N.J.S.A. 9:2-4 have “equal rights and responsibilities regarding the care, nurture, education and welfare of their children.” The plaintiff contends that the principle is meant to apply specifically to significant education issues once the child reaches school age and begins attending class in a regular education program (kindergarten through twelfth grade, and potentially college). She further argues that this principle cannot reasonably apply to pre-school, as it is not a major educational decision. She also turns to Pascale v. Pascale, 140 N.J. 583 (1995) in support of her argument that the primary residential custodian is generally responsible for many facets of the child’s day-to-day life including arranging alternative care such as daycare. The Court first examined the parties’ reliance on Pascale and Beck. Upon review, the Court found that neither case was factually relevant to the issue of pre-school