Biological vs. Psychological Parent's Rights Clarified

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The terms “biological parent” and “custodial parent” are common in Family Law that don’t require a lawyer to explain. But another equally important one is “psychological parent.”

A New Jersey Appeals Court recently found that the rights of a psychological parent, no matter how important to a child’s life and upbringing, are less than those of a biological one.

The child in question in this case, “Jason,” was raised by his maternal grandmother because both of his parents were drug addicts. At one point, the father’s parents applied to the court for grandparent’s visitation. The maternal grandmother opposed this, claiming that as the “custodial parent” of Jason she had the right to make “all decisions” about his health and safety.  She was, she claimed, the “psychological parent.”

This concept arose several years ago when one member of a lesbian couple had earlier decided to become pregnant by artificial insemination. Before twins were born, the mother and her partner began living together and afterwards raised them as two parents would. Later, they held a commitment ceremony. But one year later, the relationship ended and the natural mother stopped the former partner’s visitation with the children. The former partner then went to court to claim joint custody. While the trial court denied the request, the New Jersey Supreme Court decided that a “psychological parent” can be a third party who has stepped in to assume the role of a legal parent who has been unable or unwilling to undertake the obligations of parenthood. The Court said that “once a third party has been determined to be a psychological parent to a child, … he or she stands in parity with the legal parent.” 

Despite that, the decision in this new case was that a “psychological parent” does not have the same rights as a biological parent in child-rearing decisions. The paternal grandparents only needed to show that their visitation with Jason was in his “best interests” instead of a higher standard of showing that the child would suffer “an identifiable harm” if they were denied visitation. 

While the rights of grandparents is important, restricting those of “psychological parents” is of concern. We live in a time when single parents, sometimes  not wedded to the child’s other biological parent, are helped in child raising by grandparents, other family members and significant others. Similar situations exist when gay or lesbian parents separate. In both cases, a “real parent” can replace or substitute for  the biological one in everything of importance in a child’s life. He or she should “stand in the place” of the birth parent and have the exact same rights.