Child custody is almost always a fraught issue within a divorce. Presumably, both of a child’s parents want what is best for the child and believe that means spending a maximum amount of time with them. Their actions — and arguments — are also driven by their own sense of loss in the face of spending less time with the child. These scenarios are both heartbreaking and all-too-familiar, and they occur whether a parent is biological, adopted, or even a stepparent. Each state has taken its own approach to whether and when a stepparent can apply for custody during a divorce, with some states holding that custody is only available to a stepparent if they have legally adopted the child. In other cases, including in Pennsylvania and New Jersey, the rules are less stringent and allow custody based on established relationships and what is in the child’s best interest.

In the state of Pennsylvania, a stepparent or grandparent who has taken on responsibilities for a child is considered “in loco parentis.” When a marriage ends and a stepparent has an established relationship with the child and has performed care duties for the child, they are able to seek custody. Pennsylvania’s courts will consider awarding these stepparents custody without making them responsible for the child’s financial support.

The state of New Jersey has taken a similar view to the question of stepparent custody following a divorce from the child’s biological parent. The New Jersey appellate court recently handed down a decision that granted a stepparent the right to petition for custody or visitation. The child in the case had known the stepparent in a parenting role for over seven years, since they were eighteen months old. In reviewing the case the New Jersey court indicated that the stepparent was permitted to seek custody as a “psychological parent,” noting that the child would actually suffer harm if the bond they had formed with the stepparent were to be broken.

Both the Pennsylvania position of “in loco parentis” and the New Jersey doctrine of “psychological parent” are true to the notion that custody should be determined by what is in the best interest of the child. If you are seeking guidance regarding a custody issue within a divorce, our compassionate attorneys can help. Contact us today to learn more.

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