concurring in part; dissenting in part.
I concur in the opinion of Judge Stern with respect to visitation. I agree completely with Judge Stern that “the critical issue to be decided is whether the granting of joint custody or visitation is in the ‘best interests’ of the children.” However, I dissent from the decision reached by Judges Stern and Braithwaite, albeit on entirely different grounds, to affirm the denial of joint legal custody.
My disagreement with Judge Stern in regard to the custody issue in this case is narrow. He would affirm the denial of joint custody, apparently applying the best interests standard to the trial record, and citing only the biological relationship of M.J.B. with the children as the basis for affirming rejection of joint custody. I agree that the biological relationship is a factor to be *126considered in making a custody determination, particularly if each party seeks sole custody. However, biology warrants considerably less weight when joint custody is sought by one who is, as Judge Stern and I agree, the other psychological parent to the children. The controlling best interest standard has never been applied to the facts in this case, because the trial judge concluded, contrary to the overwhelming weight of the evidence, that V.C. was not a psychological parent. ■ The judge therefore obviously did not consider custody or visitation under a best interests analysis.
Based on the record and the undisputed facts, it is plain to me, as it is to Judge Stern, that visitation with V.C. is in the best interests of the children. A remand is required to determine a specific visitation plan. By contrast, I cannot find on this record that joint custody is or is not in the best interests of these children. That is a decision best left to the Family Part in the first instance. I therefore would remand the matter for reconsideration of custody under a best interest analysis. While I recognize the downside of postponing finality, I am confident that it can be accomplished quickly if given priority, and that it is a critical step in determining the future relationship between these children and their “other mother.”
In order to consider whether the trial court erred in terminating the relationship between V.C. and the children, that is, whether visitation or joint custody was improperly denied, we first must decide what standard applies. In reaching the decision that the best interests of the child must drive both visitation and custody disputes between a biological parent and another bonded, psychological parent, I begin, as do my colleagues, by examining the relevant statutes. N.J.S.A. 9:2-3 provides:
[w]hen the parents of a minor child live separately, or are about to do so, the Superior Court, in an action brought by either parent, shall have the same power to make judgments or orders concerning care, custody, education and maintenance as concerning a child whose parents are divorced. ... (emphasis added.)
N.J.S.A. 9:2-4 further provides, in part, that:
[t]he Legislature finds and declares that it is in the public policy of this State to assure minor children of frequent and continuing contact with both parents after *127the parents have separated or dissolved their marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.
In any proceeding involving the custody of a minor child, the rights of both parents shall be equal .... (emphasis added.)
I find the statutory definition of “parent” set forth in N.J.S.A. 9:2-13(f) to be significant: “The word ‘parent,’ when not otherwise described by the context, means a natural parent or parent by previous adoption.” N.J.S.A. 9:2 — 13(f) (emphasis added). The Legislature did not foreclose the possibility that a person other than a “natural parent or parent by previous adoption” might come within the class of persons referred to as “parents” in N.J.S.A. 9:2-3 and 9:2-4, depending upon “the context.” That definition evidences flexibility, not rigidity, consistent with the various family relationships existing in our society today. More significantly, it is consistent with the family established by these parties, who entered into what each described as a committed relationship, unquestionably intending to raise these children together. I can imagine few circumstances in which a person other than a “natural parent or parent by previous adoption” is better “described by the context” than V.C.
The facts here plainly evidence defendant’s recognition of plaintiff as the children’s “other mother,” at least during the first two- and-one-half years of the children’s lives. The parties’ commitment ceremony was as close to a marriage ceremony as it could be under law. It was sanctioned by a priest who was recognized by both parties. M.J.B. chose V.C. to be the children’s “other mother,” and expressed her feelings about V.C.’s role as a co-parent on numerous occasions. The parties and the children attended numerous family and social events together as a family, including functions at Lambda Families, an organization for gay and lesbian families. In addition, the children had a close relationship with V.C.’s extended family. V.C’s brother is J.M.B.’s godfather; the children called V.C.’s mother “grandma,” and they are also close to V.C.’s grandmother and siblings.
*128The trial judge erred, in my view, by posing the wrong question with respect to M.J.B.’s intent in conceiving these children. He cited M.J.B.’s medical consultation and preparation for artificial insemination before entering a relationship with V.C., and her discussions with others about the choice of a sperm donor, in support of his conclusion that “[t]he decision to have the children was clearly the defendant’s rather than a joint decision by both parties.” The relevant question, it seems to me, is not whether M.J.B. would have gone forward with insemination without V.C., but whether she in fact did so fully intending that they would jointly parent the child[ren] of this conception. The record unambiguously establishes that the answer to that question is “yes.”
From the point of view of the children and the parties, V.C. is no third party interloper. Even measured by the trial judge’s recitation of the facts, plaintiff’s relationship with the children was functionally and psychologically that of a parent.
Moreover, the evidence was undisputed that V.C. undertook the financial responsibilities of a parent to these children. While the parties maintained their relationship, each executed a will naming the other as beneficiary, and each named the children as contingent beneficiaries. V.C. originally named the children as contingent beneficiaries on her pension and life insurance, with M.J.B. as primary beneficiary. After the parties separated, V.C. made the children her primary beneficiaries. The parties contributed to savings accounts for each child, and each of the parties served as a custodian. In addition, V.C. voluntarily paid child support to M.J.B. after the separation, which M.J.B. accepted for a time, apparently until she decided to cut off V.C.’s relationship with the children. By denying the non-biological mother any legal recognition, the court has also denied the children the financial support of a second parent, as well as the security of having another parent who could maintain stability and continuity in their lives in the event of M.J.B.’s premature death or incapacity.
I disagree with Judge Braithwaite’s reliance upon what he describes as a literal interpretation of the statute defining “par*129ent,” and his view that allowing either visitation or custody as sought here by V.C. would constitute a radical departure from current law. Without disavowing Zack, Judge Braithwaite justifies the denial of both custody and visitation on a finding that “the trial court properly concluded that plaintiff was not a psychological parent.” He reaches that conclusion by defining “psychological parent” as one whose removal from the child’s life “will cause that child severe psychological harm,” citing Hoy v. Willis, 165 N.J.Super. 265, 272, 398 A.2d 109 (App.Div.1978), without addressing the evidence that Judge Stern and I each have cited to conclude that V.C. is a psychological parent. Psychological parenthood is a finding based upon the role the person historically has played in the child’s life. Neither optimistic nor pessimistic predictions of future harm that would result from ending that role can logically define the role itself.
Judge Braithwaite would recognize no legal status whatsoever in V.C.’s relationship to the children absent express legislation. In my view, granting V.C. visitation and remanding for reconsideration of custody would effect a reasonable application of existing statutes and common law to reality; families today take many forms, and we must protect all relationships between parents and children.
While it would be appropriate for the Legislature to address the issues raised by this case, these children cannot wait. It is the function of the courts to address those interstitial areas where no statute literally controls. See, e.g., In re Adoption of B. by E. and R., 152 N.J.Super. 546, 555, 378 A.2d 90 (Co.Ct.1977) (in light of the birth father’s objection, Judge (now Justice) Coleman denied adoption but awarded custody to grandparents who “[stood] as psychological parents to B. in every sense of the term.)” My opinion is informed, as is Judge Stern’s, by the decision and reasoning of the majority in Adoption of Two Children by H.N.R, 285 N.J.Super. 1, 10, 666 A.2d 535 (App.Div.1995), quoting Adoptions of B.L.V.B. and E.L.V.B., 160 Vt. 368, 628 A.2d 1271, 1275 *130(1993),11 and construing the adoption statute to permit a biological mother’s same sex partner to adopt.
When social mores change, governing statutes must be interpreted to allow for those changes in a manner that does not frustrate the purposes behind then-enactment. To deny the children of same-sex partners, as a class, the security of a legally recognized relationship with their second parent serves no legitimate state interest.
My view is consistent, as is Judge Stern’s, with Zack v. Fiebert, 235 N.J.Super. 424, 432, 563 A.2d 58 (App.Div.1989), where Judge Long wrote for this court:
[T]here 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.
[WJhere, 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 to be applied to the quest for custody. In such circumstances, the best interests test should apply.
[(emphasis added) (citations omitted).]
See also J.A.L. v. E.P.H., 453 Pa.Super. 78, 682 A.2d 1314, 1319 (1996):
Biological parents have a prima facie right to custody, but biological parenthood is not the only source of such a right. Cognizable rights to seek full or partial custody may also arise under statutes ... permitting grandparents and great-grandparents to seek visitation or partial custody of their grandchildren or great grandchildren or by virtue of the parties’ conduct, as in cases where a third party who has stood in loco parentis has been recognized as possessing a prima facie right sufficient to grant standing to litigate questions of custody of the child for whom he or she has cared. See, e.g., Rosado v. Diaz, 425 Pa.Super. 155, 624 A.2d 193 (1993); Kamer v. McMahon, 433 Pa.Super. 290, 640 A.2d 926 (1994).
*131In Zack we recognized that someone who stands in the shoes of a parent, that is, one who has effectively become a psychological parent, is different than any other third party seeking custody, and that such a parent therefore need not prove that the so-called natural parent is unfit. Zack, supra, 235 N.J.Super. at 432-33, 563 A.2d 58. However, the record contained insufficient proof that the grandparents who sought custody had become psychological parents to the child, and “the standard to be applied depends on the status of the third party....” The best interest test was therefore inappropriate.
One commentator has recommended “expanding the definition of parent to include those persons who have established a parental relationship with the child,” while preserving “the natural parent preference, but only to the extent that it is consistent with the child’s best interest.” Janet Leach Richards, The Natural Parent Preference Versus Third Parties: Expanding the Definition of Parent, 16 Nova L.Rev. 733, 735 (1992). Richards would extend the natural parent preference to a third party who had acted as a parent, such as V.C., and in a custody dispute between such a person and a natural parent, as here, the standard simply “would be the best interest of the child.” Id.
As Judge Stern notes, there is ample precedent for granting custody to a psychological parent where that is in the best interest of the child. See Hoy v. Willis, 165 N.J.Super. 265, 398 A.2d 109 (App.Div.1978) (foster mother functioned as a psychological parent and had a bonded relationship with the child). In Hoy we recognized more than twenty years ago,
Courts have traditionally been reluctant to deny a parent custody of his or her child. However, when the best interests of the child will clearly be served by a custody award to a third party, a finding of either parental unfitness or abandonment is not a prerequisite to the entry of an order doing so.
That there can be a psychological parent-child relationship between a child and someone other than the child’s biological parent is well recognized in the literature *132on the subject. Biological relationships are not an exclusive determinate of the existence of a family.
[Id. 165 N.J.Super. at 272, 398 A.2d 109. (citations omitted).]
See also Todd v. Sheridan, 268 N.J.Super. 387, 633 A.2d 1009 (App.Div.1993) (reversing custody award to father, and ordering a best interests test to consider maternal grandparents’ custody claim as the child’s psychological parents and primary caretakers). Palermo v. Palermo, 164 N.J.Super. 492, 497, 397 A.2d 349 (App.Div.1978) (custody awarded to child’s stepmother over the natural father); S.M. v. S.J., 143 N.J.Super. 379, 363 A.2d 353 (Ch.Div.1976). I agree entirely with Judge Stern that “unfitness” is not the proper test here. In applying the best interest test to a psychological parent’s application for custody, I would follow the guidance of N.J.S.A. 9:2-4, considering the non-exclusive factors set forth in that statute, and recognizing the “status as biological [parent] as one weight in the best interests balance.” Todd v. Sheridan, supra, 268 N.J.Super. at 399, 633 A.2d 1009.
Judge Braithwaite relies in part upon a decision of one intermediate appellate court in California. Nancy S. v. Michele G., 228 Cal.App.3d 831, 279 Cal.Rptr. 212 (1991) (denying custody and visitation on similar facts). After describing the parties’ joint decision to parent two children, and the post-separation shared custody arrangements, that court “agreefd] with appellant that the absence of any legal formalization of her relationship to the children [i.e., adoption] has resulted in a tragic situation.” Id., 228 Cal.App.3d at 841, 279 Cal.Rptr. at 219 (emphasis added). However, the California court felt bound to a narrow statutory definition of parent “as one who is the natural or adoptive parent of a child.” Id., 228 Cal.App.3d at 835, 279 Cal.Rptr. at 215.12
[E]xpanding the definition of a ‘parent’ in the manner advocated by the appellant could expose other natural parents to litigation brought by child-care providers of long standing, relatives, successive sets of stepparents or other close friends of the *133family. No matter how narrowly we might attempt to draft the definition, the fact remains that the status of individuals claiming to be parents would have to be litigated and resolution of these claims would turn on elusive factual determinations of the intent of the natural mother, the perceptions of the children, and the course of conduct of the party claiming parental status. By deferring to the Legislature in matters involving complex social and policy ramifications far beyond the facts of the particular case, we are not telling the parties that the issues they raise are unworthy of legal recognition. To the contrary, we intend only to illustrate the limitations of the courts in fashioning a comprehensive solution to such a complex and socially significant issue.
[Id. 228 Cal.App.3d at 841, 279 Cal.Rptr. at 219.]
Our own statute is broader, as noted above, and in any event does not require judicial inaction in the face of a perceived “tragic situation.” I do not share the fear of a “slippery slope” as expressed by the California court and Judge Braithwaite. Family courts make decisions that “turn on elusive factual determinations” of intent and perceptions every day. Moreover, concern that to allow V.C. visitation will subject other parents to intrusive applications for visitation by “former live-in grandparents, babysitters, nannies and others” represents an understandable but unwarranted fear. Writing for a Pennsylvania appellate court, Judge Beck has said it well:
The in loco parentis basis for standing recognizes that the need to guard the family from intrusions by third parties and to protect the rights of the natural parent must be tempered by the paramount need to protect the child’s best interest. Thus, while it is presumed that a child’s best interest is served by maintaining the family’s privacy and autonomy, that presumption must give way where the child has established strong psychological bonds with a person who, although not a' biological parent, has lived with the child and provided care, nurture, and affection, assuming in the child’s eye a stature like that of a parent. Where such a relationship is shown, our courts recognize that the child’s best interest requires that the third party be granted standing so as to have the opportunity to litigate fully the issue of whether that relationship should be maintained even over a natural parent’s objections.
[J.A.L. V. E.P.H., supra, 682 A.2d at 1319-20.]
Parental autonomy over child-rearing is a significant value that has long been recognized by society and the courts. See, e.g., John DeWitt Gregory, Blood Ties: A Rationale for Child Visitation by Legal Strangers, 55 Wash. & Lee L.Rev. 351, 382-402 (1998) (criticizing the best interests test, even in the limited context of visitation); Mark Strasser, Legislative Presumptions *134and Judicial Assumptions: On Parenting, Adoption, and the Best Interest of the Child, 45 U. Kan. L.Rev. 49, 50 (1996). The apparent tension between parental autonomy and so-called third-party claims to custody and visitation does not justify ignoring the bonds a child forms with a psychological parent. I am convinced that we can serve the interests of children in non-traditional families such as this, while nevertheless protecting legitimate parental concerns for autonomy. See e.g., Nancy D. Polikoff, This Child Does Have Two Mothers: Redefining Parenthood to Meet the Needs of Children in Lesbian-Mother and Other Nontraditional Families, 78 Geo. L.J. 459/464, 490, 501-07, 513-16, 574-75 (1990).
Suffice it to say that the facts apparent in the record before us, with respect to this plaintiffs relationship with these children, could not be established by the average babysitter, nanny, or grandparent (including even most “live-in” grandparents). Those few persons who can prove a relationship similar to that of V.C. with these children should be properly recognized. Indeed, our ability to distinguish between those who truly stand in the shoes of a parent and others who play significant but not parental roles in a child’s life, is best evidenced by this court’s decision in Zack While recognizing the best interest standard for adjudicating custody and visitation disputes involving persons who stand in loco parentis, the court in Zack concluded that the evidence concerning those grandparents’ close relationship with the children nevertheless did not place them in the shoes of a parent.
This is not the first time a court has had to address these difficult issues. See Nicole Berner, Child Custody Disputes Between Lesbians: Legal Strategies and Their Limitations, 10 Berkeley Women’s L.J. 31, 32 (1995) (citing an American Bar Association estimate that between six and ten million children in the United States are being raised by gay or lesbian parents.) And certainly it is not the last. As our society and cultures evolve, along with our concepts of family, courts will undoubtedly face other situations in which the parties to a non-traditional *135parenting arrangement, each of whom is directly involved with the care and nurturing of a child, come to a parting of the ways and fail to agree on the best means of parenting. Such failures will continue to bring courts into the picture, allowing and requiring true strangers to determine what is in the best interest of the child.
The availability of artificial insemination (including known, unknown, and combined sperm donors), in vitro fertilization (including egg donation), and other means of reproduction, may further cloud the definition of biological parenthood. See Craig W. Christensen, If Not Marriage? On Securing Gay and Lesbian Family Values By A “Simulacrum of Marriage, ” 66 Fordham L.Rev. 1699, 1760-62 (1998). Indeed, psychological parenting takes on more and more importance under these circumstances. Would we view this case differently if V.C. had donated the eggs for in vitro fertilization, and the fertilized embryo had been implanted in M. J.B.’s uterus? What if two men, intending to jointly parent ' their child, each donated sperm to be mixed together and used to artificially inseminate a woman willing to carry the child for them? And then there are the rare switched-baby cases. Bright-line rules that are appropriate to financial and commercial disputes are less helpful in resolving such relationship issues. See, e.g., Strasser, supra, 45 U. Kan. L.Rev. at 109-10.13 In the matter before us, I can find no better guiding principle than the best interest of the child.
Others have adopted that principle, at least in the context of visitation disputes. In Holtzman v. Knott, 193 Wis.2d 649, 533 N.W.2d 419, 421, cert. denied, 516 U.S. 975, 116 S.Ct. 475, 133 L.Ed. 2d 404 (1995), discussed at length by Judge Stern, the Wisconsin Supreme Court set forth a workable standard for addressing visitation disputes after the break-up of a relationship *136between the adults. That Court affirmed without discussion the trial court’s order dismissing the plaintiffs petition for custody, on the basis of the Wisconsin custody statute, holding that the plaintiff had “not raised a triable issue regarding [defendant’s] fitness or ability to parent her child and has not shown compelling circumstances requiring a change of custody.” Id. 533 N.W.2d at 420, citing Wis. Stat. § 767.24(3). The majority adopted a more liberal standard for visitation. Concurring in Holtzman, Justice Bablitch eloquently addressed the same concerns I have here:
My focus is on the completely innocent victim in this case, and the thousands of others like him: the children of dissolving non-traditional relationships. The issue is the best interests of these children, and the role of the court in protecting them.
The dissents totally ignore the access (i.e. visitation) interests of the one undisputable victim in this case, the child. Having been victimized by the dissolving relationship of the two people who raised him, the dissents would victimize the child once more by denying him any relationship with one of the two people he has come to love and cherish. It is through no fault of this child that he finds himself where he is today. Yet the dissents, two of which accuse the majority of legislating a result, themselves legislate the courts right out of any role in protecting access rights for children of dissolving non-traditional families.
[533 N.W.2d at 437-38.]
In a visitation dispute between lesbian parents with a history remarkably similar to the case before us, but where custody was not sought, Judge (now Chief Judge) Kaye of the New York Court of Appeals dissented from “[t]he Court’s decision, fixing biology as the key to visitation rights____” In re Alison D. v. Virginia M., 77 N.Y.2d 651, 657-58, 572 N.E.2d 27, 30, 569 N.Y.S.2d 586, 589 (1991):
[T]he impact of today’s decision falls hardest on the children of those relationships, limiting their opportunity to maintain bonds that may be crucial to their development. The majority’s retreat from the courts’ proper role — its tightening of rules that should in visitation petitions, above all, retain the capacity to take the children’s interests into account — compels this dissent.
The reasoning of Justice Bablitch and Judge Kaye applies equally to custody disputes where a psychological parent is involved.
I am satisfied that the record of V.C.’s relationship with the children requires visitation, whereas that relationship does not necessarily point to joint custody. In regard to custody, I would hold simply that where a person proves a bonded parental rela*137tionship with a child,14 a best interest analysis must form the basis for a custody determination. That has not happened in this case.
I would therefore reverse the judgment denying joint custody and visitation, and barring V.C. from all contact with the children. I would remand to the Family Part not only to establish a visitation plan, but also to determine V.C.’s application for joint custody under a best interests analysis. I would instruct the Presiding Judge of the Family Part to assign another judge to the matter on remand, in order to insure a fresh evaluation under the correct legal standard. I would instruct the judge on remand to begin with the existing record, and leave to the judge’s discretion how much additional lay or expert testimony would be helpful to the court, and whether to appoint a guardian ad litem or attorney to represent the interests of the children with respect to custody, as permitted by N.J.S.A. 9:2-4c “for good cause and upon [the court’s] own motion____”
Because I am concerned that V.C. has been barred from all contact with the children since the Family Part’s decision in June 1998,1 would direct the designated Family Part Judge to establish a visitation schedule within thirty days, to conclude the custody hearings within 90 days, and to give this entire matter the highest possible priority. Time does not stand still for children while the parties and the courts pursue litigation.
I note, however, that the Supreme Court of Vermont later declined on facts similar to those before us to exercise its equitable jurisdiction to order visitation, finding neither statutory nor common law grounds for jurisdiction. Titchenal v. Dexter, 166 Vt. 373, 693 A.2d 682 (1997) (citing a recently enacted Vermont statute providing for adoption by the same-sex partner of a biological parent, and establishing jurisdiction to decide custody or visitation disputes when the adults’ relationship breaks up. Id. 693 A.2d at 687.)
For a detailed discussion of the issues raised by the California case, see Elizabeth A. Delaney, Statutory Protection of the Other Mother: Legally Recognizing the Relationship Between the Nonbiological Lesbian Parent and Her Child, 43 Hastings L.J. 177(1991).
There is, in my view, a pressing need for professionals in many disciplines, including law, child psychology, and medical ethics, to consider these circumstances, and for the legislature to consider the informed views of such persons whenever it addresses custody and visitation of children.
The terms variously employed by courts and commentators include psychological parent, in loco parentis, de facto parenthood, equitable parent or functional parent, among others.