Plaintiff's Attorney KAREN G. SILVERMAN, ESQ.
Defendant's Attorney KENNETH J. MOLLOY, ESQ.
Attorney for Child: THERESA MARI, ESQ.
Patrick Leis III, J.
the reading of the following papers: (1) Plaintiff's Post
Trial Memorandum received in this Court on January 13, 2017;
(2) Defendant's Post Trial Memorandum received in this
Court on January 17, 2017; (3) Attorney for the Child's
Post Trial Memorandum received in this Court on January 13,
2017; and, (4) the Custody trial held in this Court on
October 18, 19 and 26, 2016; and now, it is
that plaintiff is granted shared custody of J.M.; it is
that plaintiff is granted visitation with J.M. every
Wednesday for dinner, a week-long school recess and two weeks
out of the summer as delineated in this decision and
matter, plaintiff Dawn M., who is the non-biological,
non-adoptive parent, asks the court to grant her
"tri-custody" of defendant husband Michael M.'s
ten-year-old biological son J.M..  After denying
defendant's motion for summary judgment,  this court
ordered a trial to determine custody and visitation rights of
the parties regarding J.M..
facts at trial established the following:
and defendant were married on July 9, 1994. After being
unsuccessful at attempts to have a child, the parties went to
a fertility doctor. The plaintiff was artificially
inseminated with defendant's sperm and conceived a child.
Unfortunately, that child was miscarried at ten weeks
April of 2001, plaintiff met Audria G. (hereinafter referred
to as "Audria") and they became close friends.
Audria and her boyfriend moved into an apartment downstairs
from plaintiff and defendant. When Audria's boyfriend
moved out, Audria moved upstairs with plaintiff and
defendant. Sometime in 2004, the relationship between
plaintiff, defendant and Audria changed and the three began
to engage in intimate relations.
went on, Audria, plaintiff and defendant began to consider
themselves a "family" and decided to have a child
together. The parties and Audria went to the fertility doctor
previously utilized by plaintiff and defendant with the hope
that Audria could be artificially inseminated with
defendant's sperm. The fertility doctor, however, refused
to artificially inseminate Audria because she was not married
to defendant. Thereafter, the parties and Audria decided they
would try to conceive a child naturally by defendant and
Audria engaging in unprotected sexual relations. The credible
evidence establishes that it was agreed, before a child was
conceived, that plaintiff, Audria and defendant would all
raise the child together as parents.
became pregnant and J.M. was born on January 25, 2007. The
evidence establishes that plaintiff's medical insurance
was used to cover Audria's pregnancy and delivery, and
that plaintiff accompanied Audria to most of her doctor
appointments. For more than eighteen months after J.M.'s
birth, defendant, plaintiff and Audria continued to live
together. Audria and plaintiff shared duties as J.M.'s
mother including taking turns getting up during the night to
feed J.M. and taking him to doctor visits.
went on, however, the relationship between defendant and
plaintiff became strained. In October of 2008, Audria and
plaintiff moved out of the marital residence with J.M.. A
divorce action was commenced by plaintiff against defendant
in 2011. Plaintiff testified credibly that after the divorce
action was commenced, defendant no longer considered her to
be J.M.'s parent. Prior to this divorce, a custody case
was commenced by defendant against Audria. Defendant and
Audria settled their custody proceeding by agreeing to joint
custody; residential custody with Audria and liberal
visitation accorded to defendant.  The plaintiff still
resides with Audria and J.M., and sees J.M. on a daily basis.
She testified that she brought this action to assure
continued visitation and to secure custody rights ...