In a first-impression ruling breaking new ground for New Jersey, Superior Court Judge Stephanie M. Wauters created three parent custody in her ruling in D.G. & S.H. v. K.S., 2016 WL 482622, 2015 N.J. Super. LEXIS 218 (N.J. Super. Ct., Ocean County, Aug. 24, 2015, approved for publication, Feb. 5, 2016), stating that a child’s birth parents, a gay man and a straight woman who conceived the child through assisted reproductive technology, should share joint legal custody together with the father’s same-sex spouse, who was found by the court to be a psychological parent of the child.
In the same ruling, Judge Wauters held that the mother could not relocate with the child to the west coast in order to live with her boyfriend, as the child would be adversely affected by the impact of such a move on her relationship with her fathers. However, Wauters ruled, while treating the biological father’s husband as a joint residential custodian parent, she could not declare him a legal parent of the child, since New Jersey’s law on parentage adheres to the traditional paths to that status of genetic contribution, gestation or adoption, and none of those methods of attaining parental status were presented in this case.
The child, identified in the opinion as O.S.H., was born in 2009. D.G. is her biological father, and K.S. is the biological mother. S.H. is D.G.’s husband. The much-simplified story of the case is that D.G., S.H. and K.S. began in the fall of 2006 to discuss the possibility of conceiving a child together and raising the child with a tri-partite parenting arrangement. They decided to use D.G.’s sperm because he and K.S. had been long-time friends. They decided not to use a doctor’s assistance, instead following directions in a book on the “Baster Method,” by which they accomplished insemination at home, although K.S.’s first pregnancy ended in a miscarriage. After O.S.H. was born, D.G, S.H. and K.S. shared parenting responsibilities. The child mainly lived with her mother with frequent visitation with the fathers. D.G. operated a business (with flexible hours) at the Jersey Shore, and S.H. was employed as a New York City high school teacher. K.S. worked in a New Jersey restaurant owned by her parents. The men shared an apartment in Manhattan as their primary residence. The parents spent most of the summer after O.S.H. was born in a small house in Point Pleasant Beach owned by K.S., and at the end of the summer the men decided to rent their own home in Point Pleasant Beach for ease in shared parenting of the child. Parenting time fluctuated depending on the work commitments of the various parents. K.S. owned a home in Costa Rica where she would spend part of the winters with the child, and where the men occasionally visited. After Superstorm Sandy in October 2012 damaged the New Jersey coastal homes, the child spent more time with her fathers in New York City.
By Art Leonard, March 7, 2016 – Le-Gal.org
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