Jonathan Marks, STL Moms: Third Party Visitation Cases

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Margie:  This is a case where a dad and two moms get tri-custody of a child. Attorney Jonathan Marks with the Marks Law Firm is here to explain this historic ruling and really what it all means. Good morning to you.

JM:  Good morning Margie.

Margie:  So this is an extremely unique case out of New York…

JM:  Correct

Margie:  And the ruling just coming down. A lot of twists and turns in the backstory for all of this Jonathan.

JM:  Ya, I mean basically what you had was a married couple who unfortunately weren’t able to conceive children, the wife unable to bear child. So instead of going through a normal surrogacy situation or adopting a child, they decided to enter into an open marriage where the husband ended up conceiving a child with a woman who just happened to be there next door neighbor. They ended up having a child…umm… they then start to raise the child as a tri-custody situation where both the step-mom, sort of, and the mom, the biological mom, and the dad are raising the child together. Then unfortunately along the way the marriage falls apart and subsequently a divorce is filed and then a paternity suit is filed for purposes of the custody of the child.

Margie:  So then the judge is left to decide okay what is in the best interest of the child, who now basically has, you know, the wife in the case, who really has no biological relationship to the child, but has been very maternal and instincts to this child.

JM:  Correct. So the extra twist that made this sort of a news story, was the fact that the wife and then the ex-wife in this situation actually became involved in the same sexual relationship with the neighbor who had actually been the biological mother of the child. So as a result of it, the non-biological parent, the ex-wife, had actually spent time at both houses with the child and been consistent in that child’s life from a maternal perspective. So the court, even though it wasn’t thrilled with the fact pattern that was put in front of it, had to make a determination, like in every custody case, what is in the best interest of the child, and ultimately had to determine that each of these individuals had some form of a legal and physical custody right to the child and awarded what has been labeled tri-custody.

Margie:  Yea…so I mean what does all this mean for us sitting here today Jonathan?

JM:  Sure. So in a normal situation, you don’t see this fact pattern, because you usually go through one of two situations. If the dad had had this situation and was already engaged with his wife and knows there’s going to be an open relationship, typically you would’ve expected after the child was born there would’ve been a step-parent adoption. And as a result of it, he and his now ex-wife would’ve adopted the child and they would’ve preceded in a normal union as a nuclear family. The alternative would’ve been they could’ve entered into a surrogacy agreement where it would’ve been done by contract and so after the child was born they would’ve filed the terms of the contract, preceded to a stepparent adoption and terminated the biological mother’s parental rights. When neither one of those happen, you get into this unique situation where a court has to make a determination of what are the custody rights of these three individuals. Two it knows because they’re biological parents but one makes it unique because they’re not really a blood relative of the child.

Margie:  Yea.

JM:  So, you know, if you’re sitting here today and you’re in one of these situations, you know you have a couple of options obviously of what to look for. But for, in general, what you’re concerned about if you’re a court is does this mean now a stepparent is going to come into court and start to assert rights that they, you know, spent 10 years let’s say, as in this situation, um in some form of an equitable parent situation where they’re going to want actual legal and physical custody rights of what was deemed their stepchild at the time that somebody’s going through a divorce.

Margie:  I mean how much of our current custody statutes address third party relationships?

JM:  So they typically address third party relationships when it’s biological in nature. So, you know, a child is taken into foster care unfortunately the juvenile court’s involved, they’re terminating parental rights and so a grandparent or some form of a blood relative is stepping into the shoes. Or you also have it maybe in a divorce situation where a grandparent had really been the one caring for the child over a period of time and they assert themselves for a visitation schedule with that child in the divorce case. That’s your most common situation. This, however, opens the door to some other loopholes that nobody ever thought about because it’s just sort of a very bizarre fact pattern.

Margie:  Yes, certainly is. Maybe something to think about here in the near future.

JM:  Ya, you know, it’d be interesting enough to see how the legislature would take a look at something like this and then maybe, you know, in the same manor that you’ve seen, you know, special interests groups take an interest in custody situations and reevaluating them, maybe stepparents will be doing the same thing and trying to get some lobbyist before the legislature.

Margie:  Alright. Attorney Jonathan Marks, thanks for your time this morning. We appreciate it, explaining that very complicated case. If you have questions about third party custody head to the STL Moms tab and we will link you to the Marks Law Firm.

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