Superior Court of New Jersey


P.O. BOX 2191
TOMS RIVER, N.J. 08754-2191

November 2, 1998

Bettina E. Munson, Esq.
Schottland, Manning, Rosen, Caliendo & Munson
36 West Mann Street
Freehold, New Jersey 07728

Paul J. Urbania, Esq.
12 Reckless Place
Red Bank, New Jersey 07701

Docket No. FD-15-748-98N

    Dear Counsel:

    The parties to this custody dispute, S.L.V. and R.E.M., were a lesbian couple who met each other in 1989. A close and intimate relationship developed between them and in the Fall of 1991, they moved in together and shared a single-family residence in Lakewood, N.J. owned by an elderly gentleman. S.L.V. and R.E.M. would eventually acquire title to this property where R.E.M. continues to reside personally. The parties continued to live together and began discussing between themselves the idea of having and raising a child together. According to R.E.M., the topic of conceiving and raising a child together was a mutual undertaking beginning sometime in the Fall of 1993. S.L.V. testified the topic of having a child did not occur until in later in 1994 with R.E.M. not initially receptive to the idea. In any event, when the decision was made to conceive a child together through artificial insemination, S.L.V. acknowledged that at this point in their relationship she wanted R.E.M. to be part of the birth and parenting of the child.

    Together, S.L.V. and R.E.M. researched the topic of artificial insemination and conferred with one another about the genetic profile of the sperm donor. They discussed selecting a sperm donor who shared common characteristics of each of them. Moreover, they discussed between themselves who would be the egg donor and carry the child. Each acknowledged during their testimony that R.E.M.'s medical history of asthma, cervical cancer and a hysterectomy were factors in deciding that S.L.V. would be artificially inseminated and carry the child. They agreed with each other that it would be in the child's best interest to be discrete with others over the actual identify of the egg donor.

    In planning for the child, the parties further agreed that due to R.E.M.'s physical restrictions from a work-related injury, she would remain at home as the primary caretaker of the child. This arrangement would permit S.L.V. to return to her work, after the child's birth, as a respiratory therapist at a local hospital where she was earning approximately $32,000.00 per year at the time. The medical procedure of artificial insemination would be covered by S.L.V.'s insurance with R.E.M. agreeing to pay for the sperm donor costs. In furtherance of their planning, the process of artificial insemination was undertaken with S.L.V. becoming pregnant in 1995. During the pregnancy, R.E.M. accompanied S.L.V. on her doctor's visits and attended Lamaze child birth classes with her. In anticipation of the child's birth, a variety of topics were discussed between S.L.V. and R.E.M. which included the issue of adoption, male role models and what would occur should their relationship dissolve. As a result, the parties sought legal advice and arranged to have drawn a power of attorney by S.L.V. designating R.E.M. as her attorney-in-fact, and a last will and testament dated January 26, 1996 which designated R.E.M. as guardian of any of her minor children. Following their domestic dispute, S.L.V. would later revoke the power of attorney and last will and testament on September 22, 1997.

    The child, a boy, was born on March 2, 1996 and named A.J.M.V. R.E.M. was present at the hospital with S.L.V. but not permitted to enter the delivery room due to a cesarean section delivery. The child's name, A.J.M.A., has the surnames of both parties, which is reflected on the birth certificate as well as a birth record naming R.E.M. and S.L.V. as the child's parents. the fingerprints of both S.L.V. and R.E.M. appear on the hospital birth record with the child's fingerprints as well. During S.L.V.'s recovery, R.E.M. spent three days at the hospital wearing a wrist identification bracelet identifying her as a parent to the child.

    Upon discharge from the hospital, S.L.V. and R.E.M. returned home together with A.J.M.V. and shared child care responsibilities. The parties mailed birth announcements to friends and family announcing the arrival of the child with S.L.V. and R.E.M. named as the 'proud parents' on the announcement. After approximately eight weeks, S.L.V. returned to employment at the hospital as anticipated leaving R.E.M. at home with the child as the primary caretaker during S.L.V.'s work hours. When S.L.V. would return home from work, she would assume child care which included feeding, bathing and putting the child to bed.

    After the child's birth, R.E.M. testified the parties drew an agreement entitled 'Agreement between Mother and Her Partner' which memorialized the mutual decision of S.L.V. and R.E.M. to conceive, bear and raise the child acknowledging R.E.M. as a 'defacto' parent. During the hearing, S.L.V. disputed the authenticity of the signature which appears to be hers on the agreement. However, the evidence in this case tends to support the view that it is more likely than not that the agreement, signed or not, represented the understanding and intention of the parties at the time of the child's birth to co-parent and raise A.J.M.V. together.

    Within a month of the birth, the parties obtained legal counsel and with S.L.V.'s consent as the natural parent, an adoption petition for the child by R.E.M. was filed with the Superior Court on April 26, 1996. The hearing date for the adoption was scheduled for August 19, 1996 with Better Living Services designated by the court as the approved agency to undertake the investigation of the proposed adoption. While the adoption petition was pending, both S.L.V. and R.E.M. agreed the home study and investigation may not be favorable due to their household and living arrangements with the elderly gentleman. They mutually agreed to withdraw the court adoption proceedings on August 19, 1996 with the understanding they would refile for the adoption when only the two of them constituted a household.

    About this time, problems developed in the relationship between the parties. S.L.V. testified R.E.M. was frustrated with the fact she was not the biological mother and resented the time and attention she was giving to the child. R.E.M. testified that S.L.V. threatened to leave with the child and not consent to the adoption unless certain conditions such as payment of household bills were met by R.E.M. R.E.M. testified she paid and met these demands for fear that S.L.V. would withdraw her consent to A.J.M.V.'s adoption. According to S.L.V., the relationship further deteriorated due to R.E.M.'s several social outings with another female and her announcement she was no longer in love with S.L.V. Earlier, R.E.M. had received a substantial worker's compensation award from her work-related injury which, according to R.E.M., was used, in part, to pay off approximately $25,000.00 of S.L.V.'s debts as well as $26,000.00 worth of joint debts which S.L.V. did not dispute.

    During the period following the child's birth, S.L.V. and R.E.M. continued to live together and share child care responsibilities. S.L.V. was working three days a week as a respiratory therapist with R.E.M. providing primary care for A.J.M.V. during her work hours R.E.M. would feed, care and nurture the child, visit friends and family and even visit S.L.V. with the child during her work hours. Upon S.L.V.'s return from work, she would spend her time with her child and assume child care responsibilities.

    The parties broke off their relationship shortly before Thanksgiving of 1996 but continued to live together and discuss the child's adoption. Despite their personal conflicts, both parties initially agreed they could get along on matters involving the child, raise A.J.M.V. together and act in his best interest. However, S.L.V. testified she began to have reservations about the prospective adoption and did not feel it would be in the child's best interest. She perceived R.E.M.'s payment of the bills and her credit card debt as motivated by a desire to obtain her consent to the adoption. In or about September, 1997, S.L.V. announced she would not consent to any adoption. R.E.M. countered these assertions at trial by offering into evidence a friendship card sent o her by S.L.V. dated November 27, 1996, which expresses S.L.V.'s commitment to her and describes R.E.M. as a 'wonderful mom and wonderful person.' However, problems in their relationship continued and in December, 1997, domestic violence complaints were filed with mutual restraints entered by the court, which were later dismissed by the parties. Following the issuance of restraints, S.L.V. left the household with the child and has maintained herself and the child in a separate residence until the present.

    After the parties separated and following the dismissal of restraints, R.E.M. was given supervised visitation only, which she exercised regularly. The parties were generally cooperative during supervised visitation and there was testimony that the parties were able to communicate by telephone concerning issues of the child's health and welfare. The court later granted R.E.M. unsupervised visits and during the expanded visitation R.E.M. testified she took the child to the circus, fairs, other families' households, story time at the beach and even visited S.L.V. at her workplace.

    S.L.V. and the child have been residing at S.L.V.'s mother's home since the separation of the parties. The household consists of S.L.V., the child, S.L.V.'s mother and her female companion. S.L.V.'s mother and female companion have maintained a lesbian relationship over the past twenty-four years in the same household that raised S.L.V. S.L.V.'s mother testifies that her home was the site of supervised visitation with R.E.M., which she described had some problems but went generally well. She describes A.J.M.V. as a social child who interacts well with friends and family and refers to her as 'Amma Bobbi'.

    R.E.M.'s mother, who resides about an hour away from the parties, described the relationship of her daughter, R.E.M., and S.L.V. over the years. She was very much aware of her daughter's lesbian relationship and privy to their conversations that addressed the implications of a lesbian couple conceiving and raising the child. She recalls her daughter and S.L.V. planning the pregnancy and discussing at a Christmas party the characteristics of a sperm donor and the commitment of the parties to remain together and raise the child. The family was excised when they learned of S.L.V.'s pregnancy and arranged a baby shower which was attended by friends and family from both sides. After the child's birth, R.E.M.'s mother recalls commenting to her husband, R.E.M.'s stepfather, the special nurturing and care the child was receiving from both mothers. She has revealed to many friends and acquaintances the fact that the child is of a lesbian relationship and introduced A.J.M.V. to friends as her grandson. During her testimony. R.E.M.'s mother became emotional and visibly distressed at the prospects of not having the child as a part of her and her family's life in the future. R.E.M. related how A.J.M.V. is a part of her family's social and holiday gatherings, with her mother called 'Grandma Mimi' and her step-father 'Numpa' by A.J.M.V.

    Gregory V. Sharkey, the court appointed guardian ad litem for A.J.M.V. and attorney, testified at the custody hearing in accordance with his report submitted to the court. Mr. Sharkey recounted the relationship of the parties as he understood it had developed over the years and noted their mutual decision to plan and have a child together through the process of artificial insemination of S.L.V. The guardian annexed his report, the biogenics document and agreement for artificial insemination, the child's record, birth announcement, and excerpts from the baby photo album as evidence, in his opinion, which reflected an intention of the parties to co-parent and raise the child. It was the guardian's assessment that both S.L.V. and R.E.M. presented as good parents and caretakers with strong emotional bonds to the child, A.J.M.V. The guardian deferred the legal question to the court as to whether and under what circumstances the non-biological party would be entitled to custodial rights as a parent. However, it was his recommendation that it was in A.J.M.V.'s best interest to continue the psychological bond and relationship with R.E.M. with a substantial time share equal to that of the biological mother, S.L.V.

    Michelle Rabinowitz, a licensed psychologist since 1979, was appointed by the court to conduct a psychological evaluation and bonding evaluation to determine the best interests of the child. Dr. Rabinowitz testified that both S.L.V. and R.E.M. each recounted a consistent and parallel version of the history of their relationship and decision to conceive and raise a child. Both S.L.V. and R.E.M. were found by the court appointed psychologist to be fit and appropriate parental figures with the best interests of the child at heart. In a report, marked as a joint exhibit by counsel, Dr. Rabinowitz found no evidence of any significant psychological factors which would prevent either S.L.V. or R.E.M. from being an appropriate care giver to this child.

    Testimony was elicited from the psychologist regarding the distinction between a biological or birth parent and the 'psychological' parent. Dr. Rabinowitz opined that the status of one as a biological parent only 'minimally enters the parenting equation' and it is the 'psychological parent' that is important when addressing adult-child relationships. During cross-examination, the psychologist acknowledged a series of hypothetical situations where third parties, e.g. babysitters and caretakers, could bond with a child warranting continued contact. However, under the circumstances of this case, Dr. Rabinowitz did not find any reason to equate R.E.M.'s relationship to the child with that of a babysitter or other third-party caretaker. Further, the psychologist offered that the sexual orientation of the parties should not be a concern here and analogized the situation to a single working mother with no father in the picture who places the child with a female caretaker. Dr. Rabinowitz noted the parties themselves recognized the need for male role figures in A.J.M.V.'s life, which could be achieved through contact with teachers, coaches, grandfathers, uncles or other extended family members.

    Dr. Rabinowitz concluded that the observation sessions between A.J.M. V. and S.L.V. as well as those with A.J.M.V. and R.E.M. were similar and noted little difference in the bonding between A.J.M.V. and his relationships with R.E.M. and S.L.V. In the psychological evaluation, Dr. Rabinowitz found 'even at two years of age, A.J.M.V. has developed a strong psychological bond and he would experience trauma if that bond were severed permanently. Thus, A.J.M.V. needs an on-going and consistent psychological relationship with R.E.M. for his best interest.' The psychologist recommended that the non-biological party, R.E.M., have a substantial time share which would place S.L.V. and R.E.M. on an equal emotional footing with the child.

    A threshold issue in this case is whether R.E.M., the non-biological parent in a lesbian-relationship has standing to assert a legal claim for custody of and/or visitation with A.J.M. V., the biological parent. Further, if standing is conferred upon R.E.M., the issue becomes the legal standard to be applied in evaluating the claim for custody and/or visitation with the child by the non-biological or third party.

    It is not disputed that the statutory authority of N.J.S.A. 9:2-4 which confers upon parents after separation or dissolution of their marriage the right to seek custody and/or parenting time does not apply to the parties to this litigation. Under most circumstances, a third party seeking custody against a natural parent has the burden of demonstrating the unfitness of the natural parent. E.T. v. L.P., 185 N.J. Super. 77 (App. Div. 1980). This standard adheres to the presumption in favor of the natural parent's superior right to custody, Matter of D.T., 200 N.J. Super, 171,175-176 (App. Div., 1985). However, a line of cases has evolved in New Jersey which address and recognize the equitable powers of courts to consider custody and/or visitation to a third party under its parens patrie power. In Hoy v. Willis, 165 N.J. Super, 265 (App. Div. 1978) the court determined the best interests of a minor child required custody remain with the foster parent, a paternal aunt, without requiring a finding of either parental unfitness or abandonment. Citing Sorrentino v. Family & Children Society of Elizabeth, 72 N.J., 127, 131-132 (1976), the Appellate Court recognized the existence under certain circumstances of a psychological parent-child relationship between a child and someone other than the child's biological parent. Although the facts in Hoy are distinguishable in that the child in that case recognized only the paternal aunt as a parental figure, the case adopts the view that a psychological bond or tie which can develop between a child and someone other than a biological parent. Historically, it had been the doctrine of parens patrie or court's equitable powers which afforded standing to grandparents seeking visitation prior to the specific statutory enactment of grand parental visitation under N.J.S.A. 9.2-7.1.

    A more recent discussion of standing and the standards to be applied in custody actions by third parties is found in Zack v. Fiebert, 235 N.J. Super, 424 (App. Div. 1989). In that case, the maternal grandparents brought an action seeking visitation and custody of their two grandchildren following the death of their daughter. The Appellate Court in Zack undertook an analysis of the appropriate standard in what the court viewed to be conflicting decisions in the area and noted, at page 432;

''At first blush, these decisions 1 are perplexing. We have struggled with them and with the underlying issue and have concluded that the results in these cases are reconcilable. We hold that there is no single standard applicable in every third party custody case; the standard to be applied depends upon the status of the third party vis-a-vis the natural parent and the child.''

    The Appellate Court, in Zack concluded its analysis of the ease law with the following test:

However, where, as a preliminary matter, the third party is able to show that he or she stands in the shoes of a parent to the child and thus in parity with the natural parent, he or she should be accorded the status of a natural parent in determining the standard robe applied to the quest for custody. In such circumstances, the best interest test should apply. See Matter of Baby M supra. 109 N.J. at 445. This Two step analysis harmonizes the expressed as well as the unexpressed underpinnings of Hoy E.T. and D.T.

    Through medical advances and technology, artificial insemination is bringing children into non-traditional families; e.g. single or same sex parents. Thus, while nontraditional relationships or families create novel legal issues, the court's analysis need not be novel as the legal test for the determination of claims by third parties for custody and/or visitation has been continually addressed by the New Jersey Courts over the years. In other words, there is no reason here to treat R.E.M.'s claim, for custody and/or visitation any differently due to the fact that the dispute is between two persons of the same gender or, mote specifically, between two former partners of a lesbian relationship. In the case of Matter of Adoption of Child by J.M.G., 267 N.J.Super, 622 (Ch.Div. 1993); the trial court in granting a lesbian's adoption of the biological child of her partner noted at page 628, 'New Jersey Law has recognized in custody matters that the rights of parents cannot be denied, limited or bridged on the basis of sexual orientation. See In re J.S. and C., 129 N.J.Super, 486, 489 (Ch. Div. 1974). The real court in that ease could discern no reason to treat the sexual orientation of the parent or adoptive parent as anything more than a factor in its consideration.

    The reasoning in the J.M.G. case was later embraced by the Appellate Division in the case of In the Matter of the Adoption of Two Children by H.N.R., 285 N.J. Super. J (App. Div. 1995). There, the Appellate Division interpreted the adoption statutes and held as valid the adoption of two children by a same-sex cohabiting partner of the biological mother without affecting the mother's parental rights. The facts in that case, which involved the planning and artificial insemination of one lesbian partner paralleled those at bar with the exception that the relationship continued after the children's birth to an eventual adoption which was determined by the court to be statutorily permissible without terminating the biological mother's rights. The Appellate Division reasoned it should broadly construe the adoption statutes to protect and promote the best interests of the child.

    Rule 5-1-2 provides for a broad rather than a restrictive approach to jurisdiction in the Family Court and provides 'all civil actions in which the principal claim is unique to and arises out of a family or family type relationship shall brought in the Family Court.'

The rule's commentary is indicative of a rule of inclusion rather than exclusion with the following:

The rule does not, however, undertake to give any farther definition to these actions or to define the meaning of a family or family type relationship. It is the apparent attempt of the rule to include within this category of undefined family actions support and property claims among persons who constitute their relationship in a manner comparable to a marriage but are not married to each other. Presumably, this category will include unmarried cohabiting adults whether or not of the same sex and children who are part of their households. Problem arising in these families were family type relations which would form the basis of a traditional family action if the adults were married to each other will presumably constitute civil family actions recognizable in the Family Part. N.J. Court Rules, 1999 edition, Pressler.

    The issue of standing in custody disputes, particularly in cases of a non-biological partner or a same-sex relationship, has been addressed in other jurisdictions with varying results. Several jurisdictions have determined that without modification of state legislation, third parties cannot stand in loco parentis or have standing to petition for custody or visitation regardless of prior parental agreements or a significant bonded relationship. Alison v. Virginia M., 572 N.E.2d 27, 32 (N.Y. App. 1991) (held a woman who had a live-in relationship with child's mother was not a 'parent' within meaning of Domestic Relations Law); Nancy S. v. Michelle G., 228 Cal. App. 3rd., 831,279 Cal. Rpter. 212 (1991); (held that a lesbian partner was not a partner within definition of Uniform Parentage Act and status of a lesbian partner as a de facto parent, under doctrine of in loco parentis, or by equitable estoppel did not entitle a lesbian painter to be granted custody.)

    Other jurisdictions have found a non-biological party acting in loco parentis has standing to petition for custody and visitation, see, e.g., In re Custody of H.S.H.K., 193 Wis. 2d. 649, 533 N.W. 2d 419, cert, denied, Knott v. Holtzman, U.S. 116 S.Ct. 475, 133 L.Ed.2d 404 (1995) (court may grant visitation to former lesbian partner if petitioner proves parent-like relationship with minor child). In J.A.L. v. E.P.H., 453 Pa. Super. 78,682 Ap.2d 314 (1996), a former lesbian partner established that she stood in loco parentis to the child of the relationship and entitled carried to pursue custody and visitation on a best interest analysis. In that case, the parties entered into a lesbian relationship and purchased a home together. Following discussion and planning, the parties agreed that E.P.H. would be artificial inseminated with a sperm donor to be selected by them.
Thereafter, E.P.H. became pregnant and J.A.L. was part of the prenatal care and attended the childbirth. The parties in that case also arranged to have legal documents drawn to memorialize their co-parenting agreement with the child. Literature in the field has treated the split of the court decisions by noting some jurisdictions adopt a formal or traditional approach by recognizing only state sanctioned unions between persons. Other jurisdictions have adopted a functional approach which recognize a broader class of individuals, e.g. the homosexual couple. It is this court's view that the New Jersey case law has adopted a functional approach in these types of cases. See Stephanie Sowell, New York Court of Appeals Refuses to Adopt a Functional Analysis in Defining Family Relationships) 195 Har. L. Rev. 941 (1992).

    In determining whether R.E.M. has stood in loco parentis to A.J.M.V., the court must examine whether R.E.M. has been a 'psychological parent' to the child. 'Whether any adult becomes the psychological parent of a child is based upon day-to-day interaction, companion and shared experiences. The role can. be fulfilled either by a biological parent or by an adoptive parent or by any other caring adult, but never by an absent, inactive adult.' Hoy v. Willis, 165 N.J. Super. 265, 273 (App. Div., 1978). In the instant case, the court finds that the family-type relationship between S.L.V. and. R.E.M., although non-traditional, was formed and developed several years prior to the child's birth. The birth of the child, A.J.M.V., was not coincidental to the parties' relationship, but rather a planned parenting arrangement between S.L.V. and R.E.M. They planned to conceive this child together through artificial insemination and mutually selected a sperm donor with a genetic profile that was compatible with their physical characteristics. S.L.V., as the egg donor and person to carry and deliver the child, was a deliberate choice of the parties after consideration of their respective medical and physical conditions. These decisions followed their research of artificial insemination, consultation with medical personnel and discussion with family members about the implications of raising a child in a lesbian relationship. The pregnancy of S.L.V. was a shared and joyous event for each of them with R.E.M. fulfilling her role as co-parent by accompanying S.L.V. throughout her prenatal care and attending birthing classes. R.E.M.'s commitment to the child was continuous, and she would have been present during the child's delivery but for her exclusion from the delivery room as a result of a cesarean section delivery by S.L.V.

    S.L.V.'s, willingness to recognize R.E.M. as a parent is evidenced by both surnames appearing on the birth certificate as well as a birth record identifying both R.E.M. and S.L.V. as the child's parents. Fingerprints of both S.L.V. and R.E.M. appear on the hospital birth records. Birth announcements to friends and family announcing. S.L.V. and R.E.M. as the 'proud parents' as well as the baby album containing a photo of S.L.V. and R.E.M. as the parents, are evidence of S.L.V.'s intention to have society recognize R.E.M. as a parent to the child. The family tree m the baby album branches into and recognizes both families and refers to S.L.V. as 'mother' and K.E.M. as 'mere'.

    Following the child's birth, the parties sought legal advice and had documents drawn evidencing the co-parenting agreement in order to solidify their commitment to raise A.J.M.V. together. There can be little question from the evidence in this case that both S.L.V. and R.E.M. intended this child, A.J.M.V., to be a product of their lesbian union and relationship and not merely the offspring of S.L.V. as a single parent.

    The evidence in the case further demonstrates that the care and nurturing received by the child from R.E.M. since birth was given in fulfillment of the role as parent as contrasted with that of merely a caretaker during S.L.V.'s employment. The court notes S.L.V. never really challenged the fact that R.E.M. was to be the child's co-parent until the relationship between them deteriorated.

    The court is satisfied that R.E.M. has been able to show that she stands in the shoes of a parent to the child and should be accorded the status of parent in parity with S.L.V. in determining the standard applied in her quest for custody and visitation. The next inquiry becomes whether it is in the child's best interest to have a custodial relationship and/or continued, parenting time with R.E.M. The courts can make these 'best interest' determinations on a case by ease basis.

    In assessing the best interests of the child, the court will give significant weight to the recommendations of Dr. Rabinowitz, which found a strong psychological bond between A.J.M.V. and R.E.M. and the need for an on-going and consistent psychological relationship with R.E.M. Both the psychologist and guardian ad litem found both parents to be fit and proper parents with the psychologist noting no evidence of any psychological factors which would prevent S.L.V. or R.E.M. from being an appropriate parent. The evidence shows, A.J.M.V., has interacted well and enjoyed a relationship with both sides ' of his extended families. Specifically, R.E.M.'s mother and step-father offer grandparental figures Who have. been part of this child's entire life. The grandfather, called 'Numpa' by A.J.M.V., and R.E.M.'s brother offer male role models which both S.L.V. and R.E.M. acknowledged to be a factor when they initially considered conceiving a child during their lesbian relationship. There is no evidence that this child receives anything other than love and affection from both families and it is in his best interest to continue to be raised and nurtured in such a family environment. The Appellate Court in Adoption of two children by H.N.R., 285 N.J. Super, 1, 10 (App. Div. 1995) cited dicta in a Vermont case involving a same-sex partner adoption which is worthy of mention, here:

Today, a child who receives proper nutrition, adequate schooling supportive sustaining shelter is among the fortunate, whatever the source. A child who also receives the love and nurture of even a single parent be counted among the blessed. Here this Court finds a child who has all of the above benefits and two adults dedicated to his welfare, secure in their loving partnership, and determined to raise him to the very best of their considerable abilities. There is no reason in law, logic or social philosophy to obstruct such a favorable situation. Adoption of B.L.V.B., 160 Vt. 368, 628 A.2d. 1271 (Sup. Ct. 1993).

    The court finds that R.E.M. due to a work-related injury will be able to continue with A.J.M.V.'s child care during the pre-school years and afterwards, for that matter, while S.L.V. is at work continuing her career as a respiratory therapist R.E.M. continues to reside in the Lakewood home which is in close proximity to Kimball Medical Center and serves as a convenient and logical place for his care during S.L.V.'s work hours.

    During the trial, there was considerable evidence adduced concerning the financial circumstances of R.E.M. As a result of a serious work-related injury, R.E.M. settled a worker's compensation claim which resulted in net proceeds of approximately $250,000.00 in March, 1998. R.E.M. testified she established an account in trust for the child and funded same with $43,000.00 with a commitment for future support and security for A.J.M.V. The court does not view such evidence as giving R.E.M. a financial advantage or superiority over S.L.V. Rather, the court, in non-traditional family matters, must be mindful that a child born by artificial insemination to a lesbian couple will never have the benefit of the support or security offered by the natural father or his family in the event something should occur to the natural mother. This court finds that in addition to the emotional and family support offered by R.E.M., it is also in the child's best interest to be assured of future and security from R.E.M., who was a party to the decision to conceive and raise him.

    S.L.V. and R.E.M. were each asked during their testimony if they could abide by the court's determination in this matter. Both indicated the willingness to abide by the court's determination in the case. Dr. Rabinowitz also noted that once the court decided on R.E.M.'s legal parental rights that S.L.V. would be more cooperative in terms of any time share arrangements. Having the opportunity to observe R.E.M. and S.L.V. testify over several days, it is the court's impression that each of them have a sincere interest in the health and well being of this child which will take precedence over any personal differences between them. Thus, the parties have the ability to agree, communicate and cooperate in matters relating to the child.

    The court finds it is in the best interests of the child, A.J.M.V., to grant custody as a joint and shared custodial arrangement with primary residential custody continuing with the biological mother, S.L.V. R.E.M shall be entitled to reasonable parenting time in order assure the substantial time share which Dr. Rabinowitz recommended would place S.L.V. and R.E.M. on an equal emotional footing with the child. In view of R.E.M.'s work-related disability and S.L.V.'s return to work, the original plan for R.E.M. to be primary caretaker during S.L.V.'s work hours should be implemented. This arrangement will give R.E.M. parenting time and eliminate the need for day care or other caretakers. An alternating weekend and holiday parenting schedule is also appropriate to insure R.E.M. and S.L.V. will have leisure parenting time with the child for themselves and extended family members. In the event the details of such a parenting schedule cannot be reached through counsel, then the parties can mediate parenting time by contacting the Dispute Resolution Unit of the Family Part.

    Finally, a duly of support is imposed on both S.L.V., the biological parent, and R.E.M., the non-biological parent. Although addressed by counsel, the court, nonetheless, requests up-dated care information statements from both parties to set the appropriate level of child support unless an agreement can be reached between the parties.

    Ms. Munson is to prepare the order and submit same to the Court under the five-day rule.

    Respectfully submitted,



    CC: Gregory V. Sharkey, Esq.


    1The Appellate Division, in Zack v. Fiebert, in its discussion of case law in the area discussed the Matter of Baby M, 109 N.J. 396 (1988); Hoy v. Willis, 165 N.J. Super 265 (App. Div. 1978); S.J. v. S.J., 143 N.J. Super, 379, 385 (Ch. Div. 1976); Matter of D.T., 200 N.J. Super, 171, 175 (App. Div. 1985).