As far as families are concerned, there is a long-standing legal principle which generally permits parents to raise their children as they see fit without governmental interference. While that typically remains true, our courts are also granted inherent “parens patrie” authority, by which they are charged to protect the welfare and best interests of minor children within their jurisdiction.

In Family Law, these principles do not always comfortably coexist, and will sometimes collide. For purposes of this discussion, I will focus on the interplay between both principles, in terms of a person other than a natural parent who is seeking custody. Such a person is often referred to as a “psychological parent.”

When natural parents compete for custody, our courts are instructed to apply a “best interests of the child” standard. In such cases, the parents initially stand in equipoise; however, when a person other than a natural parent seeks custody the court must initially determine whether “extraordinary circumstances” exist, in which case the court will then apply the “best interests” standard.

Continue Reading Custody and the Psychological Parent