On appeal from the Superior Court, Appellate Division, whose opinion is reported at 321 N.J. Super 482 (1999).
The opinion of the court was delivered by: Coleman, J.
This is an action for custody of a three and one-half year-old child who has been residing with the maternal grandparents since the sudden death of the mother twelve days after giving birth to the child. This appeal requires us to determine the appropriate standard for deciding a custody dispute between a biological parent and a third party following the death of the custodial parent. Specifically, we must determine whether it was appropriate for the lower courts to consider the best interests of the child as the appropriate standard in awarding custody of a fit biological father's child to the deceased mother's parents. Approximately nineteen months after the mother's tragic death, the Chancery Division, Family Part, determined that it was in the child's best interest to award custody to the maternal grandparents. In a published opinion, a divided appellate panel affirmed. 321 N.J. Super. 482 (App. Div. 1999). This appeal is before the Court as of right by reason of the dissent. We now reverse.
We hold that the courts below applied the improper standard to this custody dispute. Upon the death of the custodial parent, in an action for guardianship of a child pursuant to N.J.S.A. 9:2-5, a presumption exists in favor of the surviving biological parent. That presumption can be rebutted by proof of gross misconduct, abandonment, unfitness, or the existence of "exceptional circumstances," but never by a simple application of the best interests test. Because that presumption in favor of the biological father has not been rebutted, and because of the need for finality to these proceedings, we direct the immediate transfer of custody to the biological father, plaintiff Lawrence Watkins. Consistent with the biological father's concession to this Court that the Nelsons should have visitation with the child, we direct the trial court to establish a visitation schedule for Beverly and Kevin Nelson, the maternal grandparents.
The facts critical to this litigation unfolded quickly and are largely undisputed. On August 15, 1996, seventeen year-old Megan Murphy (Megan) gave birth to Chantel Ivonne Watkins-Murphy (Chantel). Nineteen year-old plaintiff Lawrence Watkins (Larry) executed a Certificate of Parentage at the hospital shortly after Chantel's birth, legally establishing paternity. See N.J.S.A. 9:17-41b. Megan and Larry were not married; nor did they live together. Chantel and Megan resided at the home of Megan's mother and stepfather, defendants Beverly and Kevin Nelson. Larry lives with his parents, a sister, and an uncle about an hour's drive from the Nelsons' home. Larry and Megan continued to see each other after Chantel was born, and Larry testified that they had planned to get married. On August 27, 1996, twelve days after Chantel was born, Megan died in an automobile accident. Although Chantel was riding in the vehicle with her mother, it appears that she emerged without permanent physical harm.
At Megan's funeral, Beverly Nelson was informed that Larry wanted custody of Chantel, but Ms. Nelson refused to give the child to the father. Throughout the ensuing litigation, Chantel has lived with the Nelsons, spending most of her weekends with Larry and his family. On September 4, 1996, the Nelsons filed a verified complaint seeking to be appointed as guardians for Chantel, presumably pursuant to N.J.S.A. 9:2- 5. Notwithstanding the fact that Larry had executed the Certificate of Parentage before Chantel left the hospital, and that Megan herself acknowledged Larry as the father on the child's birth certificate, the Nelsons alleged in the guardianship complaint that "[d]oubt exists with respect to the infant's paternity." Ms. Nelson's certification, attached to the verified complaint, stated: "Lawrence Watkins is of African-American descent. My daughter, Megan Murphy, was of Hispanic and European descent. . . . Chantel does not presently appear to have typical African-American characteristics." The Nelsons also sought an order compelling Larry to submit to genetic testing. Within two days after the complaint was filed, Larry filed a certification in opposition to the complaint in which he represented that he is the biological father of Chantel. He asserted that since Megan's funeral, Ms. Nelson had deprived him of custody of Chantel, as well as Chantel's love, affection, and companionship. Ms. Nelson admitted in her certification that "[a]t my daughter's funeral, Lawrence Watkins expressed a desire to take Chantel into his household and his mother expressed her willingness to cooperate in this endeavor."
On October 8, 1996, a judge sitting in Hunterdon County, Chancery Division, Probate Part, entered a judgment granting temporary guardianship of Chantel to the Nelsons "pending the outcome of a custody determination in the Family Part." At the same time, the court denied the application for genetic testing of Larry because a Certificate of Parentage had been filed. As a result of that guardianship decision, Larry filed a more complete answer to the guardianship complaint in which he sought a dismissal of the request for guardianship. He also filed a counterclaim in which he sought, among other things, "permanent" custody of Chantel.
A temporary custody hearing was conducted before a hearing officer on April 4, 1997. When attempts to mediate the custody dispute failed, the matter was transferred from the Probate Part to the Family Part. On May 9, 1997, a Family Part judge ordered the parties "to attend the Hunterdon County custody/visitation mediation program in order to address the issue of custody." When Larry failed to attend, the same judge found Larry had violated the court's order and directed all counsel to submit briefs concerning custody and all other issues to be resolved at a plenary hearing.
Although no formal court order was ever entered regarding visits by Larry with Chantel, the parties voluntarily agreed that he would have weekend visitation at his home. On December 16, 1997, the visitation schedule was expanded to include Friday evenings.
Chantel was sixteen months old when the plenary trial was conducted. The parties presented testimony over a four-day period. In support of Larry's request for custody, he testified, along with his parents and sister. All asserted that Larry loves Chantel, that Chantel recognizes Larry as her father, and that Larry would be a competent parent. The Nelsons testified that they too love Chantel and that Ms. Nelson has taken on the parental responsibilities since Megan's death. Although Ms. Nelson questioned Larry's maturity and paternity, the Nelsons never alleged that Larry was in any way unfit to raise Chantel. The Nelsons' position was simply that they could do a better job parenting, and that was in Chantel's best interests.
Larry also testified that he is aware that Chantel has a neurological problem related to overly flexible joints. He acknowledged that he has reviewed a medical notebook outlining exercises for the child and that he has been reading to her and helping her perform activities designed to enhance Chantel's motor skills.
Dr. Robert Clyman, a clinical psychologist, appeared on behalf of the Nelsons. He testified that he evaluated the Nelsons "in order to offer a recommendation as to whether they could be suitable . . . custodial candidates for Chantel." Dr. Clyman opined that Mrs. Nelson "has excellent parenting skills," and that Chantel was fully integrated into the Nelson family. Dr. Clyman did not evaluate Larry or the Watkins family.
Chantel was nineteen months old when the trial court rendered its decision on March 11, 1998. The trial court recognized that "in a custody dispute between a biological parent and a third person, the parent-child relationship is ordinarily not disturbed unless there is a clear showing of the parent's gross misconduct or unfitness." The trial court then noted that "[i]n this case, Beverly and Kevin Nelson stand in the shoes of their deceased daughter Megan and are in parity with Lawrence Watkins Jr., thus, the best interest standard should apply." After weighing the relevant factors, the court concluded that it was in Chantel's best interests to award custody to the Nelsons. The court was concerned with Larry's level of maturity, and was convinced that "Chantel's physical and mental welfare will be better protected in the Nelson household." The court awarded custody to the Nelsons and directed that the then current visitation schedule remain in effect.
Larry appealed that determination, and while the appeal was pending, the Nelsons filed yet another application with the trial court to compel Larry to undergo genetic testing, notwithstanding the trial court's previous denial of the identical application. The second application was similarly denied by the trial court on July 17, 1998. Six months later, the appeal was argued before the Appellate Division and decided on May 28, 1999.
A divided appellate panel affirmed in separate opinions, "substantially for the reasons set forth in [the trial court's] opinion." 321 Super. at 484. The majority stressed that "`unfitness' is not the issue here." Id. at 495. Thus, "[w]e will not interfere with the trial judge's perceptions and conclusions that as between the Nelsons and Watkins, Chantel's best interest will be served by continuing primary custody with the Nelsons, with substantial parenting time for Watkins." Id. at 498. The concurring opinion noted that in a custody dispute between a biological parent and a third party, N.J.S.A. 9:2-5 bestows a "presumption favoring the surviving parent." Id. at 501 (Landau, J., concurring). However, to overcome that presumption, "the appropriate legislative standard set for judicial inquiry is the best interests, i.e., `benefit' of the children as required in the circumstances." Ibid.
One member of the panel filed a dissenting opinion in which he argued persuasively that the trial court abused its discretion in finding that the Nelsons' right to custody of Chantel was in parity with Larry's. Instead, according to the dissent, the appropriate standard is the one used when terminating parental rights, id. at 504, and that to obtain custody, the Nelsons should have been required to prove that Larry is an unfit parent. Id. at 502 (Braithwaite, J., dissenting). The dissent concluded that because no evidence of parental unfitness was presented, custody should have been awarded to Larry. Id. at 501-02. Judge Braithwaite summarized his analysis in the following manner:
Considering that Chantel was only sixteen months old at the commencement of the trial, that plaintiff always held himself out to the child as her natural father, and that no evidence was presented that the child would be harmed by the change in custody, the reasons advanced by the trial judge and affirmed by my colleagues are wholly inadequate to conclude that the Nelsons are Chantel's psychological parents. [Id. at 503].
This appeal is before the Court as of right. R. 2:2-1(a). The natural father argues that the Appellate Division erred in applying the child's best interests standard to this case and, in so doing, deprived him of his constitutional and statutory rights to custody of his child. The Nelsons contend that this is an appropriate case in which to apply the child's best interests standard, and that a natural parent's constitutional and statutory rights are triggered only in cases involving termination of parental rights. They maintain that because Larry's parental rights have not been terminated, there was no constitutional or statutory violation. We reject the Nelsons' contentions.
We begin our analysis with the statute under which the guardianship complaint was filed, N.J.S.A. 9:2-5.
In case of the death of the parent to whom the care and custody of the minor children shall have been awarded by the Superior Court, or in the case of the death of the parent in whose custody the children actually are, when the parents have been living separate and no award as to the custody of such children has been made, the care and custody of such minor children shall not revert to the surviving parent without an order or judgment of the Superior Court to that effect. The Superior Court shall have the right, in an action brought by a guardian ad litem on behalf of the children, to appoint such friend or other suitable person, guardian of such minor children, and shall have the right to remove such guardian, and to appoint a new guardian or guardians, and to make such judgments and orders, from time to time, as the circumstances of the case and the benefit of the children shall require. [N.J.S.A. 9:2-5].
The statute does not require prior court approval for a voluntary transfer of custody by a custodial caregiver to a previously non- custodial parent upon the death of the custodial parent. However, the Superior Court can order such a transfer. But before ordering such a transfer under the statutory scheme, the Superior Court must make the disputed custody determination and, if necessary, appoint a guardian until that determination can be made. Whereas N.J.S.A. 9:2-5 precludes the surviving non-custodial parent's automatic accession to custody of his or her child, the statute does not concomitantly enhance the status of those who temporarily take custody upon the death of the custodial parent. Todd v. Sheridan, 268 N.J. Super. 387, 397-98 (App. Div. 1993). Moreover, N.J.S.A. 9:2-5 does not contain a standard to be applied when deciding a custody dispute. The second sentence in the statute confers upon the Superior Court the power, "in an action brought by a guardian ad litem on behalf of the children," to appoint and remove guardians, and to make "such judgments and orders, from time to time, as the circumstances of the case and the benefit of the children shall require." N.J.S.A. 9:2-5.
When the statute is read in the proper context, we conclude that the quoted phrase refers to the time period between the death of the custodial parent and the ultimate transfer of custody. We also conclude that the statute does not authorize a court to use the child's "best interests" test as the primary standard when making the ultimate custody determination in a custody dispute between a parent and a third party. Because the statute does not provide a standard, we must look to our statutory and decisional law concerning custody to decipher the appropriate standard to be applied in this case.
A review of the statutory and common law of custody disputes convinces us that in an action between a parent and a third party, a presumption of custody exists in favor of the parent. New Jersey's comprehensive custody-statutory scheme proclaims that "it is in the public policy of this State to assure minor children of frequent and continuing contact with both parents." N.J.S.A. 9:2-4. Furthermore, in any custody dispute, "the rights of both parents shall be equal." Ibid. Similarly, N.J.S.A. 9:17-40 declares that "[t]he parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents." A "`parent,' when not otherwise described by the context, means a natural parent or parent by previous adoption." N.J.S.A. 9:2-13(f). Grandparents are neither natural nor adoptive parents under the statute.
N.J.S.A. 9:2-4 refers only to parents and does not refer to third parties. However, N.J.S.A. 9:2-9 instructs that if a parent is "grossly immoral or unfit[,] . . . any person interested in the welfare of such child" may institute an action in Superior Court. (Emphasis added). N.J.S.A. 9:2-10 then allows a court, in an action brought by a third party pursuant to N.J.S.A. 9:2-9, to award custody of the child to that third party. But such a custodial award is based on a finding of parental unfitness, which was never alleged or found to exist in the present case. When read together, those statutory provisions indicate that in a custody dispute between a parent and a third party, the public policy of this State is that a presumption exists in favor of the parent. A third party can overcome that presumption by satisfying the standard required for termination of the rights of a non-consenting parent: unfitness, abandonment, gross misconduct, or "exceptional circumstances."
A reading of the statutory scheme to generally afford a fit parent a superior right to the custody of his or her child as against third parties conforms to common sense and constitutional law. That idea is "`so rooted in the tradition and conscience of our people as to be ranked as fundamental.'" Griswold v. Connecticut, 381 U.S. 479, 487, 85 S. Ct. 1678, 1683, 14 L. Ed. 2d 510, 517 (1965) (Goldberg, J., concurring) (citation omitted). The Supreme Court of the United States noted long ago that "[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents." Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 442, 88 L. Ed 645 (1944); see also Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599 (1982). Similarly, in In re Baby M, 109 N.J. 396 (1988), this Court recognized that a parent has a constitutionally protected, albeit limited, fundamental right to the companionship of his or her child. Id. at 450, 452 n.16; see also Adoption of Children by G.P.B., 161 N.J. 396, 403 (1999).
Judge Michels best summarized the law when he wrote:
Indeed, the right of natural parents to the custody, care and nurturing of their children has risen to the stature of a fundamental right and deserves special protection. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599 (1982); Stanley v. Illinois, 405 U.S. 645, 651-652, 92 S. Ct. 1208, 1212-1213, 31 L. Ed. 2d 551 (1972) (and cases cited); In re Guardianship of Dotson, 72 N.J. 112, 122 (1976) (Pashman, J., concurring); State v. Perricone, 37 N.J. 463, 472 (1962), cert. den., 371 U.S. 890, 83 S. Ct. 189, 9 L. Ed. 2d 124 (1962). See In re N., 96 N.J. Super. 415, 424-425 n. 5 (App. Div. 1967). Since the right of parents to the custody of their minor children is both a natural and legal right, the law should not disturb the parent/child relationship except for the strongest reasons and only upon a clear showing of a parent's gross misconduct or unfitness or of other extraordinary circumstances affecting the welfare of the child. See 59 Am. Jr. 2nd, Parent and Child, § 25 at 107-108 (1971). Thus, in determining a child's best interest, courts traditionally have been reluctant to deny a natural parent custody of his or her own child. In re Mrs. M., supra, 74 N.J. Super. at 183-184. See E.T. v. L.P., supra, 185 N.J. Super. at 84; Hoy v. Willis, 165 N.J. Super. at 272; In re N., supra, 96 N.J. Super. at 423-24. [In re D.T., 200 N.J. Super. 171, 176-77 (App. Div. 1985)].
Not surprisingly, the concept that a presumption of custody exists in favor of a parent, and that only a showing of unfitness, abandonment, gross misconduct, or "exceptional circumstances" will overcome this presumption, is steeped in the history and common law of this State. See, e.g., In re D.T., supra, 200 N.J. Super. at 175-76; E.T. v. L.P., 185 N.J. Super. 77, 84 (App. Div. 1982); S. v. H.M. & E.M., 111 N.J. Super. 553, 558-59 (App. Div. 1970); Kridel v. Kridel, 85 N.J. Super. 478, 489 (App. Div. 1964); In re Mrs. M., 74 N.J. Super. 178, 183-84, 186 (App. Div. 1962); In re Adoption of B. by E. & R., 152 N.J. Super 546, 551 (Union County Ct. 1977); Jacobson v. Jacobson, 146 N.J. Super. 491, 497 (Ch. Div. 1976); Ex parte Alsdorf, 142 N.J. Eq. 246, 252-53 (Ch. 1948); Gardner v. Hall, 132 N.J. Eq. 64, 78 (Ch. 1942), aff'd 132 N.J. Eq. 287 (E. & A. 1943); Pope v. Brown, 3 N.J. Misc. 572, 572-73 (Ch. 1925); Hesselman v. Haas, 71 N.J. Eq. 689, 694 (Ch. 1906).
The principle that a showing of gross misconduct, unfitness, neglect, or "exceptional circumstances" affecting the welfare of the child will overcome this presumption, is a recognition that a parent's right to custody is not absolute. That parental right must, at times, give way to the State's parens patriae obligation to ensure that children will be properly protected from serious physical or psychological harm. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999); In re Guardianship of J.C., 129 N.J. 1, 10 (1992). This has been our law for more than a century. As early as 1889, the highest Court in this State allowed the presumption in favor of a natural parent to be overcome by a showing of "exceptional circumstances." Richards v. Collins, 45 N.J. Eq. 283 (E. & A. 1889). More recently, in Sorentino v. Family & Children's Soc. of Elizabeth, 72 N.J. 127, 131-132 (1976), appeal after remand, 74 N.J. 313 (1977), the Court acknowledged that even if parental rights cannot be terminated on statutory grounds, "exceptional circumstances" based on the probability of serious psychological harm to the child may deprive a parent of custody. Ibid. Sees v. Baber, 74 N.J. 201, 221-222 (1977), recognized the same principle.
Sorentino observed that the rights and interests of third parties, such as prospective adoptive parents, "are necessarily subordinate to the rights of the natural parents." 72 N.J. at 131. The Court recognized that in certain anomalous cases the presumption in favor of the parent may be rebutted, even in the absence of gross misconduct, unfitness or abandonment, if a change in custody will cause serious psychological harm to a child. Sorentino, supra, 72 N.J. at 131-32. The Sorentino "exceptional circumstance[s]" basis for rebutting the presumption in favor of a natural parent was grounded in the Court's power of parens patriae, to protect minor children from serious physical or psychological harm.
One year later we elaborated on the Sorentino-type of "exceptional circumstances." Sees, supra, 74 N.J. at 221-222. Unlike in Sorentino, the Court in Sees refused to override the presumption in favor of a parent, noting that because of the very young age of the child, proof of potential severe psychological harm from a change in custody would be impossible to establish. Ibid. Significantly, we noted that the natural parents were "complete strangers" to the child in Sorentino, unlike the relationships in Sees. Id. at 221. The Court concluded that absent proof of parental unfitness or "exceptional circumstances," "there is no statutory or legal basis upon which to deny or resist plaintiff's claim qua parent to the full custody of her child." Ibid.
The lesson to be learned from Sorentino and Sees is that they fall under the "exceptional circumstances" prong of the State's parens patriae doctrine, an alternative basis for overcoming the presumption in favor of parents. We reemphasize that the rationale for allowing parental unfitness or "exceptional circumstances" to rebut the presumption in favor of a parent is grounded in the Court's power of parens patriae to protect minor children from serious physical or psychological harm. The "exceptional circumstances" exception may rebut the presumption in favor of a parent seeking custody even if he or she is deemed to be a fit parent. A good illustration of such a case is In re Allen, 626 P. 2d 16, 23-24 (Wash. Ct. App. 1981). There, the court held that awarding custody of a deaf, learning disabled child to a fit natural father who did not know sign language rather than to the stepmother, who knew sign language, would cause substantial harm to the child, who had resided with three siblings and the stepmother for four years. Ibid. Justice Stein in his dissent has characterized our intended scope of the "exceptional circumstances" standard much too narrowly. We do not intend to restrict that standard solely to the Sorentino-type cases or unfit parents.
Suffice it to say, "exceptional circumstances" mean more than a child's best interests and include, but are not limited to, the Sorentino-type of psychological parenthood. A significant difference between the child's best interests test and the parental termination or "exceptional circumstances" standard is that the former does not always require proof of harm to the child. In contrast, the latter always requires proof of serious physical or psychological harm or a substantial likelihood of such harm. Although it appears that, to date, all successful applications of the "exceptional circumstances" prong in this State have been limited to the Sorentino-type of psychological parentage, the Court has not, and need not in this case, define the full scope of this exception. Given the evolving dynamics within the family structure, the scope of "exceptional circumstances" must await case-by- case development. Based on the pleadings and the proofs adduced at trial, this case does not fall within the "exceptional circumstances" exception.
The standard that we articulate today has been applied, either in whole or in part, in most jurisdictions that have been confronted with the issue. Like this Court, they have created a presumption in favor of a parent that may be rebutted by proof of parental unfitness, neglect, or "exceptional circumstances." See, e.g., C.G. v. C.G., 594 So.2d 147, 149 (Ala. Civ. App. 1991) (quoting McLendon v. McLendon, 455 So.2d 861, 862 (Ala. Civ. App. 1984) (requiring "clear and convincing evidence that the parent is unfit or unsuited for custody and that the best interest of the child will be served by granting custody to the third person"); Maricopa County Juvenile Action No. JD-05401, 845 P.2d 1129, 1136 (Ariz. Ct. App. 1993) (stating parental presumption can only be overcome by stringent standard requiring showing of unfitness or neglect); In re Guardianship of D.A. McW, 460 So.2d 368, 370 (Fla. 1984) (stating parental presumption can be rebutted only if "detrimental to the welfare of the child" based on an exceptional circumstances test); Carvalho v. Lewis, 274 S.E.2d 471, 472 (Ga. 1981) (applying unfitness or "compelling circumstances" test and noting "[a] court is not allowed to terminate a parent's natural right because it has determined that the child might have better financial, educational, or even moral advantages elsewhere"); Stockwell v. Stockwell, 775 P.2d 611, 613 (Idaho 1989) (requiring unfitness, abandonment, or that "the child has been in the non-parent's custody for an appreciable period of time"); In re Kirchner, 649 N.E.2d 324, 334-35, 339 (Ill. 1995) (stating non-parent only has standing to petition for custody of child if parent voluntarily and indefinitely relinquished custody, or upon a finding of unfitness); In re Guardianship of Williams, 869 P.2d 661, 669 (Kan. 1994) (requiring unfitness, neglect, or highly unusual or extraordinary circumstances "even though the trial court might feel that it would decide otherwise if free to consider only the `best interests' apart from the benefits to be derived from the love and care of the natural parent"); Davis v. Collinsworth, 771 S.W.2d 329, 330 (Ky. 1989) (requiring unfitness or abandonment and noting that failure to provide essential care only qualifies when based on reasons other than poverty alone); Sider v. Sider, 639 A.2d 1076, 1086 (Md. 1993) (requiring unfitness or exceptional circumstances); White v. Thompson, 569 So.2d 1181, 1183-84 (Miss. 1990) (requiring abandonment, unfitness, or immorality); Cotton v. Wise, 977 S.W.2d 263, 264 (Mo. 1998) (requiring unfitness, abandonment, or "extraordinary circumstances"); In re Guardianship of K.M., 929 P.2d 870, 873 (Mont. 1996) (requiring voluntary relinquishment); Henderson v. Henderson, 568 P.2d 177, 181 (Mont. 1977) (requiring unfitness, neglect, or delinquency); Locklin v. Duka, 929 P.2d 930, 933 (Nev. 1996) (requiring unfitness or extraordinary circumstances); In re Adoption of J.J.B., 894 P.2d 994, 1008 (N.M. 1995) (requiring unfitness or extraordinary circumstances); Merritt v. Way, 446 N.E.2d 776, 777 (N.Y. 1983) (requiring surrender, abandonment, unfitness, persistent neglect, or other extraordinary circumstances); In re Woodell, 117 S.E.2d 4, 7 (N.C. 1960) (quoting James v. Pretlow, 86 S.E.2d 759, 761 (N.C. 1955)) (stating natural parent has right to child which may only be interfered with "for the most substantial and sufficient reasons and . . . only when the interests and welfare of the children clearly require it"); In re E.J.H., 546 N.W.2d 361, 364 (N.D. 1996) (requiring a finding of exceptional circumstances "to trigger a best-interest analysis"); In re Guardianship of M.R.S., 960 P.2d 357, 361-62 (Okla. 1998) (quoting Alford v. Thomas, 316 P.2d 188 (Okla. 1955)) (requiring unfitness or "circumstances of great weight and importance connected with the necessary welfare of the child"); Ryan v. DeMello, 354 A.2d 734, 735 (R.I. 1976) (stating "the Family Court may award the custody of a child to a relative . . . if there has been a judicial determination that the child is delinquent, wayward, neglected, or otherwise comes within the purview of the Family Court Act"); Moore v. Moore, 386 S.E.2d 456, 458 (S.C. 1989) (requiring unfitness unless parent temporarily relinquishes custody and then extraordinary circumstances); D.G. v. D.M.K., 557 N.W.2d 235, 243 (S.D. 1996) (requiring gross misconduct, unfitness, or "extraordinary circumstances" beyond "a simple showing" of best interests); In re Adoption of Female Child, 896 S.W.2d 546, 548 (Tenn. 1995) (stating parent cannot be deprived of custody unless there has been a finding of substantial harm to the child); Bailes v. Sours, 340 S.E.2d 824, 827 (Va. 1986) (quoting Wilkerson v. Wilkerson, 200 S.E.2d 581, 583 (Va. 1973) (requiring unfitness, abandonment, voluntary relinquishment or "`special facts and circumstances . . . constituting an extraordinary reason for taking a child from [a] parent'"); In re S.B.L., 553 A.2d 1078, 1082 (Vt. 1988) (requiring unfitness or extraordinary circumstances); Snyder v. Scheerer, 436 S.E.2d 299, 304 (W. Va. 1993) (requiring unfitness, neglect, abandonment or waiver).
Four states rely on harm to the child, which is part of the "exceptional circumstances" exception. See, e.g., Carter v. Novotny, 779 P.2d 1195, 1197 (Alaska 1989) (requiring unfitness or that parental custody would be "clearly detrimental to the child."); Nancy S. v. Michele G., 279 Cal. Rptr. 212, 214-15 (Cal. Ct. App. 1991) (requiring a showing that "award of custody to a parent would be detrimental to the child"); Hutchison v. Hutchison, 649 P.2d 38, 41 (Utah 1982) (requiring unfitness or "that no strong mutual bond exists, that the parent has not demonstrated a willingness to sacrifice his or her own interest and welfare for the child's, and that the parent lacks the sympathy for and understanding of the child that is characteristic of parents generally"); In re Marriage of Allen, 626 P.2d 16, 23 (Wash. Ct. App. 1981) (holding that something more than the "best interests of the child" is required to show "actual detriment to the child," but not requiring unfitness).
A small minority of jurisdictions apply a hybrid of the child's best interest test and the "exceptional circumstances" exception. See, e.g., Freshour v. West, 971 S.W.2d 263, 266 (Ark. 1998) (recognizing preference for parent, but noting child's best interest is controlling); Durkin v. Hinich, 442 N.W.2d 148, 153 (Minn. 1989) (noting presumption exists unless parent is unfit or "grave and weighty" reasons exist that "custody otherwise would not be in the best welfare and interest of the child"); Stanley D. v. Deborah D., 467 A.2d 249, 251 (N.H. 1983) (recognizing parental presumption, but making ultimate determination depend on child's best interests); Charles v. Stehlik, No. 11 WD Appeal Docket 1999, 2000 WL 36255, at *3 (Pa. Jan. 19, 2000) (same); In re Kosmicki, 468 P.2d 818, 823 (Wyo. 1970) (requiring unfitness or best interest of child, but "in proceedings involving children of tender years it is only in very exceptional circumstances that a mother should be deprived of the care and custody of her children").
One reason the overwhelming majority of states do not apply simply the child's best interests standard, or the ubiquitous, amorphous standard urged by the dissenters, is fear "that if taken to its logical conclusion, application of [that] standard `could lead to a redistribution of the entire minor population among the worthier members of the community.'" Vanessa L. Warzynski, Termination of Parental Rights: The "Psychological Parent" Standard, 39 Vill. L. Rev. 737, 759 (1994) (quoting Helen Simpson, The Unfit Parent: Conditions Under Which a Child May Be Adopted Without the Consent of His Parents, 39 O. Det. L. Rev. 347, 355 (1962)). We have applied the parental preference to avoid "the danger of giving courts the power to award custody . . . to [nonparents] solely on the grounds of best interests. If [that] is the only criterion, then a judge may take children from their parents because the judge personally [disapproves of] the parents' limited means." Turner v. Pannick, 540 P.2d 1051, 1054 (Alaska 1975) (citing with approval In re B.G., 114 Cal. Rptr. 444 (Cal. 1974)).
The standard we adopt today is designed to reduce or minimize judicial opportunity to engage in social engineering in custody cases involving third parties. In contrast, under the standard urged by Justice Stein, custody would be awarded to a third party if the child's growth and development would be "detrimentally affected" by placement with a parent. Post at (slip op. at 42-43) (Stein, J., dissenting). It appears that he is urging a camouflaged child's best interest standard. The use of such a standard to decide custody disputes between a fit parent and a third party will evolve into a "fitness contest" whose outcome will depend on the whims of the trial court. Application of Justice Stein's "detrimentally affected" standard to this case reveals only that it might be detrimental to Chantel to be raised by Larry when compared to the Nelsons. He then concludes that the Nelsons might possibly be better parents than Larry. The danger inherent in that approach is that it permits reallocation of children by the judiciary - a system that would undoubtedly victimize poor people. See Carolyn Curtis, The Psychological Parent Doctrine in Custody Disputes Between Foster Parents and Biological Parents, 16 Colum. J.L. & Soc. Probs., 149, 155 (1980). The standard that we adopt has as its benchmark the welfare of the child while at the same time protecting parental rights.
To recapitulate, it is the relationship of the child to the person seeking custody that determines the standard to be used in deciding the custody dispute. When the dispute is between two fit parents, the best interest of the child standard controls because both parents are presumed to be equally entitled to custody. The child's best interest rebuts the presumption in favor of one of the fit parents. But, when the dispute is between a fit parent and a third party, only the fit parent is presumed to be entitled to custody. In that context, the child's welfare is protected because the presumption in favor of the fit parent is rebuttable. Once the presumption in favor of a fit parent is rebutted in the manner that we have expressed today, the child's best interest is advanced by not awarding custody to the parent. Viewed in that context, in custody determinations between a fit parent and a third party, as opposed to claims made between two fit parents, the child's best interests become a factor only after the parental termination standard has been met, rather than the determinative standard itself.
The 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." Although an award of custody to a third party does not involve a termination of all parental rights, "such an award destroys any pretense of a normal parent-child relationship and eliminates nearly all of the natural incidents of parenthood including everyday care and nurturing which are part and parcel of the bond between a parent and child." Zack v. Fiebert, 235 N.J. Super. 424, 432 (App. Div. 1989). "It is cardinal [in our society] that the custody, care and nurture of the child reside first in the parents." Ginsberg v. New York, 390 U.S. 629, 639, 88 S. Ct. 1274, 1280, 20 L. Ed. 2d 195 (1968). Because the right to custody is a fundamental one protected by the constitution, In re Guardianship of K.H.O., supra, 161 N.J. at 347, the parental termination or "exceptional circumstances" standard is required to pass constitutional muster in this type of custody dispute. That principle is consistent with Zack and Todd, which stand for the proposition that when a third party, such as a stepparent, establishes psychological parentage with the child, the third party stands in the shoes of a natural parent. Zack, supra, 235 N.J. Super. at 432-33; Todd, supra, 268 N.J. Super. at 397.
That means that when the "exceptional circumstances" prong is satisfied, for example by establishing that the third party has become a psychological parent, the standard for determining custody is the same as between two fit parents:
the child's best interest test articulated in N.J.S.A. 9:2-4c. Zack, supra, 235 N.J. Super. at 433.
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. A child's "best interests" standard "does not contain within it any idealized lifestyles." Baby M, supra, 109 N.J. at 460. It "can never mean the better interest of the child." Division of Youth and Family Services v. A.W., 103 N.J. 591, 603 (1986). "It is not a choice between a home with all the amenities and a simple apartment, or an upbringing with the classics on the bookshelf as opposed to the mass media, or even between parents or providers of vastly unequal skills." Ibid. (citations omitted). That said, the point to be emphasized is that the best interest of the child cannot validly ground an award of custody to a third party over the objection of a fit parent without an initial court finding that the standard for termination of the rights of a non-consenting parent or the "exceptional circumstances" prong has been satisfied. Any contrary expressions in reported decisions are disapproved.
In this case, neither the trial court nor the majority in the Appellate Division applied the standard we articulate today. The Nelsons never claimed, nor could they, that Larry abandoned Chantel or was somehow unfit as a parent. Larry has been actively seeking custody since Megan's funeral. Furthermore, there is no evidence that a change in custody would harm Chantel. The one expert who testified was, in his own words, retained "in order to offer a recommendation as to whether [the Nelson's] could be suitable . . . custodial candidates for Chantel." Despite those uncontroverted facts, the trial court ruled that the Nelsons were "in parity" with Larry and applied the best interests standard. In so doing, the court conferred upon the Nelsons rights that are co-extensive with those of a natural parent in a case in which there was neither a claim nor proof of Sorentino-type psychological parenthood or any other "exceptional circumstances." Hence, the trial court was mistaken under the facts of this case and the controlling legal principles.
In an attempt to fit this "square" case into a "round" precedent, the Appellate Division majority mistakenly used the Sorentino "exceptional circumstances" exception by taking "judicial notice that a nineteen month old has formed a psychological attachment to, and awareness of, her primary parent figure(s)." Watkins, supra, 321 N.J. Super. at 498. However, Sorentino is distinguishable. In Sorentino, the biological parents commenced suit fourteen months after the infant's birth. The natural parents were described by this Court as "complete strangers" to the child. Sees, supra, 74 N.J. at 221 (distinguishing Sorentino). In contrast, Larry has had significant and continuous contact with Chantel since her birth and throughout this unfortunate, lengthy dispute. If a parent remains in continuous contact with his or her child from birth and has actively sought custody since the child was three weeks old, the potential for serious permanent psychological harm from a transfer of custody to the natural parent is unlikely. See, e.g., Sees, supra, 74 N.J. at 222-24; In re Guardianship of J.R., 174 N.J. Super. 211, 224 (App. Div.), certif. denied, 85 N.J. 102 (1980) (noting that critical to the ruling in Sorentino "was the undeniable fact that there was no relationship between child and natural mother"). Furthermore, under the facts of this case, the father-daughter relationship that has been ongoing since birth relieves Larry of any burden to prove that harm would not occur. Beck v. Beck, 86 N.J. 480, 494-96 (1981).
Because the Nelsons did not allege, and the evidence failed to establish, that Larry is an unfit parent, and because the Nelsons did not contend, or present proof that a change in custody would cause serious harm to Chantel, thereby satisfying the Sorentino-type "exceptional circumstances" prong, the trial court should have immediately awarded custody to Larry. Indeed, Justice Stein in his dissent agrees that the record does not establish that the Nelsons have become psychological parents. Post at (slip op. at 45-46) (Stein, J., dissenting). Under the circumstances, there should be "an immediate vesting of custody of the child in the natural" father. Sorentino, supra, 72 N.J. at 131; Sees, supra, 74 N.J. at 222-24.
However, we are not unmindful of the fact that for the last three and one half years, Chantel has resided with the Nelsons and has developed a close relationship with them. Although the long delay in reaching the ultimate custodial determination causes some concern, Larry's constant contact with Chantel convinces us that a change in custody will not harm the child. Larry recognizes the importance of the child's relationship with the Nelsons in his concession that the Nelsons should have visitations with Chantel in the event custody is awarded to him. We direct that the Nelsons transfer legal and physical custody to Larry within seven days of this decision "without further proceedings." Sees, supra, 74 N.J. at 221. The matter is remanded to the Family Part for the sole purpose of fixing a visitation schedule for the Nelsons, consistent with Larry's concession, that is comparable to the one presently granted to Larry. Unlike the dissenters with their rudderless standard, we are unwilling to misuse theories of bonding "to determine only [whether Larry] is optimum or even `better' [than the Nelsons at parenting] in some vague social sense, rather than capable of rearing the child without serious harm." In re Guardianship of J.C., supra, 129 N.J. at 21 (quoting Baby M., supra, 109 N.J. at 445).
We are compelled to comment on the extraordinarily long time this case has taken to wind its way through the judicial system. It started when Chantel was three weeks old and will not be completed until she is over three-and-one-half years old. That is too long. In an effort to avoid ...